Tagged: mental state element

Mens Rea: Does “Deliberate Indifference” Satisfy the Requirement of Knowledge?

Can indifference, even if deliberate, satisfy a criminal statute’s requirement of knowledge? This is the issue raised by the defendant in United States v. Clay, in which a petition for rehearing and rehearing en banc is presently pending. The defendants in Clay were prosecuted  under 18 U.S.C. § 1347(a), which states, in relevant part:

(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody of control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section. 

At trial, the court charged that the defendants could be found guilty based on “deliberate indifference.” The defendant were convicted and the conviction was affirmed by the Eleventh Circuit. See the Brief for Amici Curiae NACDL, Twelve Criminal and Business Law Professors, the Washington Legal Foundation and the Cato Institute listed below.

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NY Court of Appeals Issues an Opinion on Depraved Indifference

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The New York State Penal Code provides serious penalties in situations where a defendant’s reckless conduct toward others manifests “depraved indifference to human life” and exposes a victim to “a grave risk of death.” When these elements can be proven and the victim dies as a result, a defendant can be subject to conviction for second-degree murder, pursuant to N.Y. Penal Law § 125.25(2) (McKinney 2015). When the victim does not die, the defendant can be subject to conviction for reckless endangerment in the first degree, pursuant to N.Y. Penal Law § 120.25 (McKinney 2015).

In an opinion issued on February 19, 2015, the N.Y. Court of Appeals addressed the latter situation in the case of People v. Williams, 2015 N.Y. Slip Op. 01486 (Feb. 19, 2015). In this case, a prosecutor pursued a first-degree reckless endangerment charge against Mr. Williams because he did not disclose the fact that he knew he was HIV positive to a male partner with whom he had unprotected anal intercourse on several occasions and because Mr. Williams responded affirmatively to his partner’s questions about whether it was safe to engage in unprotected sex. The defendant’s partner subsequently became very ill, was diagnosed as HIV positive, and was put on a lifetime regimen of medications to stave off AIDS.

As noted in my previous post, in recent years the Court of Appeals has restricted the application of depraved indifference charges, finding that prosecutors often pursued such charges when not merited. Of particular relevance to the recent Williams case is this Court’s decision in People v. Suarez, 6 N.Y.3d 202, 844 N.E.2d 721, 811 N.Y.S.2d 267 (2005) holding that when a defendant’s reckless conduct endangers only one person, a prosecutor must show that the defendant exhibited “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts.”

In Williams, the grand jury returned an indictment on one count of first-degree reckless endangerment, N.Y. Penal Law § 120.25, and on one count of third-degree assault, N.Y. Penal Law § 120.00(2) (McKinney 2015). Upon defendant’s motion to dismiss both counts arguing legally insufficient evidence, the Supreme Court denied the motion as to the assault charge but reduced the reckless endangerment charge from first degree to second degree. The prosecutor appealed and the Appellate Division, Fourth Department, affirmed holding that viewing the evidence in the light most favorable to the prosecution, (1) the evidence was legally insufficient to support proof of the mental state requirement of depraved indifference and (2) given favorable medical advances in treatment of HIV positive patients, the defendant’s conduct did not expose the victim to a grave risk of death.

On further appeal, several civil rights, public health, and HIV advocacy organizations submitted, or joined in, amicus briefs supporting the defendant. The Center for HIV Law and Policy, on behalf of itself and several other groups, argued in its brief that “[u]sing the criminal law to prosecute and penalize people living with HIV for conduct that would be legal if they did not get tested or know their status reinforces prejudice and undermines important government-funded HIV testing, treatment, and prevention efforts.”

The Court of Appeals affirmed the Fourth Department’s decision and held that although it had no doubt that “defendant’s conduct was reckless, selfish and reprehensible,” the evidence presented to the grand jury was insufficient to support a prima facie case that the defendant acted with depraved indifference. Reviewing the testimony presented to the grand jury, the Court found that there was no evidence that “defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate.”

Given its holding on the failure of proof regarding the required mental state element, the Court of Appeals explicitly declined to address the “grave risk” element of whether, in light of modern medical science, HIV infection creates a grave risk of death.

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