## Facts

- Randy Dempsey, age 34, forced his nine-year-old brother to perform oral sex.
- The child testified that Dempsey touched his genitals and “put” Dempsey’s penis in the child’s mouth, using an anatomical doll to demonstrate the acts.
- Before the incident, a physician informed Dempsey he was HIV-positive.
- At trial, the State called the physician to prove Dempsey knew his HIV status at the time of the assault.
- Dempsey was convicted of aggravated criminal sexual assault and criminal transmission of HIV under an Illinois statute defining “intimate contact” as exposure to bodily fluid “in a manner that could result in the transmission of HIV,” without requiring actual infection.

## Issues

1. Whether Illinois’s criminal-transmission-of-HIV statute was unconstitutionally vague, as applied, because terms such as “intimate contact,” “bodily fluid,” and “could result in the transmission of HIV” failed to give fair notice and permitted arbitrary enforcement.
2. Whether forced oral sex by a defendant who knows he is HIV-positive clearly falls within the statute’s prohibition on “intimate contact” that could result in HIV transmission.

## Decision

- The Illinois Appellate Court, Fifth District, rejected Dempsey’s vagueness challenge.
- The court held the statute provided constitutionally sufficient notice and standards for enforcement as applied to Dempsey’s conduct.
- The court affirmed Dempsey’s convictions for aggravated criminal sexual assault and criminal transmission of HIV.

## Legal Principles

- A statute is void for vagueness only if it fails to give a person of ordinary intelligence fair notice of prohibited conduct or is so indefinite that it encourages arbitrary or discriminatory enforcement.
- A criminal HIV-exposure statute may constitutionally define prohibited conduct in terms of exposure to bodily fluids in a manner that could transmit HIV, and need not require proof that transmission occurred.
- Where the defendant was informed by a physician of HIV-positive status before the conduct, the statute’s knowledge requirement is satisfied as applied.

## Conclusion

The court affirmed the convictions, holding that an HIV-exposure statute defining “intimate contact” as bodily-fluid exposure posing a possible transmission risk was not unconstitutionally vague as applied to forced oral sex by a defendant who knew he was HIV-positive.


People v. Dempsey, 610 N.E.2d 208 (Ill. App. Ct. 5th Dist. 1993)