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Smallwood v. State

Citation. 22 Ill.343 Md. 97, 680 A.2d 512 (1996)
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Brief Fact Summary.

The Defendant, Smallwood, a knowingly HIV-positive individual (Defendant), was convicted of attempted murder of three rape victims for sexually assaulting them without using a condom.

Synopsis of Rule of Law.

The mere act of having unprotected sex with another person, knowing that one is HIV positive, is not sufficient to support an inference of an intent to kill.


The Defendant, a rapist, was convicted of three counts of attempted murder. The state justified the allegation of “intent to murder” on the basis of Defendant’s knowledge that he was HIV positive at the time of the rapes and his failure to use a condom while assaulting his victims.


Does evidence that a person who knowingly carried the HIV virus sexually assaulted other persons without using a condom sufficiently prove that he intended to kill them?


No. Judgment reversed.
While a trier of fact may determine the presence of an intent to kill on the part of Defendant from circumstantial evidence, that evidence must demonstrate that death was a probable result of Defendant’s conduct. Unlike the case where a Defendant has fired a deadly weapon at a vital part of a person’s body, death is not to the same extent a probable consequence of exposing a person to the HIV virus. In the cases cited as precedent by the state, the defendants have either made explicit statements that they intend to infect their victims with AIDS and have taken specific action demonstrating such intent.


This case illustrates limitations upon a prosecution for an attempted crime. Absent any other circumstantial evidence, such as a statement of intent to kill a defendant made during an assault, the act of having unprotected sex with the knowledge that one is HIV positive was not sufficient for the court to draw an inference of intent to kill.

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