A person who transmits a sexually transmitted disease (STD) to another person in Nebraska may be charged with a crime under Nebraska’s assault or attempted murder statutes.
For more information on the criminal transmission of STDs, see Transmitting an STD: Criminal Laws & Penalties.
While some states have specific laws that criminalize exposing another person to the human immunodeficiency virus (HIV) or another sexually transmitted disease, Nebraska does not. Instead, a person who transmits an STD in Nebraska could be charged under other criminal statutes, such as Nebraska’s assault statute.
The crime of misdemeanor assault is committed by intentionally, knowingly, or recklessly inflicting “bodily injury,” which includes any sort of physical pain or impairment.
The crime of felony assault is committed by intentionally or knowingly inflicting “serious bodily injury.” Any injury that creates lasting impairment or a risk of death is considered serious bodily injury.
For example, the transmission of HIV or herpes, which are both incurable, might be considered serious bodily injury. The transmission of a curable STD, such as gonorrhea, might be considered bodily injury.
(Neb. Stat. Rev. Ann. § § 28-109, 28-308, 28-310.)
In order to be convicted of assault, the defendant must act intentionally, knowingly, or recklessly (for misdemeanor assault).
People act intentionally when they act with a particular purpose. For example, someone who engages in unprotected sexual contact to deliberately transmit HIV has acted intentionally.
People act knowingly when they are aware of a high probability that transmission will result from their conduct. For example, having unprotected sex during a symptomatic herpes outbreak might be considered knowing transmission.
People act recklessly when they consciously disregard the risk of transmission. Reckless behavior is always a gross deviation from how a reasonable person would act. For example, evidence that a defendant had been tested for gonorrhea, and then failed to follow up on the test results, and transmitted gonorrhea to a sex partner, might establish recklessness.
(Neb. Stat. Rev. Ann. § 28-109.)
Additionally, if a person knows that he or she is infected with HIV (or another STD that could cause death) and has unprotected sex with a partner in order to intentionally infect the partner with the disease, the person could conceivably be charged with attempted murder.
(Neb. Rev. Stat. § § 28-303, 28-304.)
In Nebraska, it is also a crime for people who know that they are infected with HIV, hepatitis B, or hepatitis C to strike or assault a public safety officer with infected bodily fluids (blood, semen, or saliva) or bodily waste. Public safety officers include:
(Neb. Rev. Stat. § 28-934.)
For example, if a person is infected with hepatitis B and knows it, and spits on a probation officer, that could be considered assaulting a public safety officer.
A defendant who transmits an STD (or exposes a victim to an STD) in the course of a sexual assault (or child sexual assault) may be punished more severely. Judges in Nebraska must consider during sentencing whether sexual assaults have caused “serious person injury” to the victim, which includes the infliction of any disease, extreme mental anguish, or impairment of the sexual organs. Transmission of (or exposure to) an STD could be considered serious personal injury.
(Neb. Rev. Stat. § § 28-318, 28-319, 28-320, 28-320.01.)
Assault on a public safety officer is punishable by up to five years’ imprisonment and a fine of up to $10,000.
If the defendant causes serious personal injury to the victim, sexual assault is punishable by one to 50 years’ imprisonment and a fine of up to $25,000.
(Neb. Rev. Stat. § § 28-105, 28-201, 28-303, 28-304, 28-308, 28-310, 28-319, 28-320, 28-320.01, 28-934.)
Transmitting an STD can result in an assault prosecution, with serious consequences. If you are charged with assault, you should contact a Nebraska criminal defense attorney immediately. An attorney will be able to tell you how your case is likely to fare in court, depending on the judge and prosecutor assigned to your case and the facts. With an attorney’s help, you can obtain the best outcome in your case, such as a dismissal, acquittal, reduction in charges, or lesser sentence than the maximum allowed by law.