Trial In Unprotected Oral Sex Case

Pennsylvania appeals court revives charges against gay man for not disclosing HIV status

A panel of the Superior Court of Pennsylvania ruled on July 7 that prosecutors had alleged a prima facie case—that is, one that on its face supported charges—of reckless endangerment against Samuel Cordoba, who is HIV-positive, for having unprotected oral sex with another man, and therefore reversed a trial court’s dismissal of criminal charges.

Judge John T. Bender’s opinion, relying on the trial court’s summary, noted that the alleged victim and Cordoba had a two-week sexual relationship in 2003, during which they engaged in mutual oral sex five or six times without condoms. Subsequently, the other man discovered prescription medication bottles with Cordoba’s name on them that he suspected were intended to treat HIV infection. The man “confronted” Cordoba and threatened to expose him to others at the bar where they were, and the defendant admitted he had “HIV or that he had AIDS.” Angry, the alleged victim reported Cordoba to police, and was tested in six-month intervals, each time coming up negative.

The trial court record also included testimony that Cordoba never ejaculated in the alleged victim’s mouth, only on his face and chest. Among the conclusions the trial court offered in dismissing the charges was that the state failed to allege the elements of a prima facie case under the reckless endangerment statute, and that prosecution would unfairly stigmatize the defendant, who was newly coping with being HIV-positive.

In reversing, the Superior Court found that all the elements of a prima facie case had been properly alleged—that Cordoba had “recklessly engaged in conduct which places or may place another person in danger of death or serious bodily injury.” The question under this statute, said the court, is whether Cordoba, knowing he was HIV-positive, acted to pose a risk of transmission to his partner.

The trial judge suggested that the state had not alleged facts from which it could be concluded that Cordoba knew he was HIV-positive at the time of the oral sex, but Bender noted that the date on the medication was actually the day when he and his partner first had sex, and he must therefore have previously seen a doctor and been diagnosed.

The trial judge also faulted the prosecution for failing to present specific evidence that HIV could be transmitted through oral sex, but Bender argued it was sufficiently common knowledge that HIV can be transmitted through exchange of bodily fluids.

“Certainly, not every exposure to bodily fluids of an HIV-positive person will result in transmission; there are degrees of exposure that correspond to different risks of transmission,” Bender conceded. “However, in order to make out a prima facie case for recklessly endangering another person, the Commonwealth need only establish that the defendant’s conduct placed or may have placed another in danger of serious bodily injury or death,” not that it actually put the alleged victim in danger.

The Superior Court did not comment on whether studies have shown that unprotected oral sex presents a significant risk of transmission when ejaculation does not take place in the mouth of the receptive partner, although it did note that there was no testimony that either of the participants had open sores or other potential venues of transmission. In a footnote, Bender suggested that charges could be dismissed if the defendant showed that the risk of transmission was de minimis.

Bender rejected the defense argument that in light of the slight risk of transmission putting Cordoba on trial would unfairly stigmatize him for having HIV. Cordoba will now stand trail on the reckless endangerment charges.