Today, the Tennessee Supreme Court unanimously affirmed 21 of 24 convictions of a man who engaged in and filmed his unprotected sexual acts with a minor.
Mr. Barry H. Hogg, who was HIV-positive and had AIDS, befriended a 13-year-old boy. A few months later, Mr. Hogg and the minor went to an abandoned store in Wilson County and engaged in unprotected sexual acts. Mr. Hogg never told the minor that he had AIDS. Defendant recorded the sexual conduct with a video camera and later transferred the film clips onto his home computer.
A jury convicted Mr. Hogg of 11 counts of especially aggravated sexual exploitation of a minor, seven counts of criminal exposure of another to HIV, and six counts of aggravated statutory rape. The Court of Criminal Appeals affirmed the convictions.
On appeal to the Tennessee Supreme Court, Mr. Hogg contended that his multiple convictions for especially aggravated sexual exploitation and aggravated statutory rape were multiplicitous and involved only a single sexual act that justified a single conviction for each offense. The Tennessee Supreme Court first disagreed and determined that the multiple convictions for the aggravated sexual exploitation of a minor charges were justified because the plain language of the statute called for separate punishment for each film or video representation. The Court also reasoned that multiple convictions for aggravated statutory rape were justified because Mr. Hogg engaged in different acts of sexual penetration with the minor.
The Tennessee Supreme Court then addressed Mr. Hogg’s convictions under the law forbidding criminal exposure of another to HIV law. Mr. Hogg, who was HIV-positive with an AIDS diagnosis, never told the minor of his diagnosis when he engaged in the unprotected sexual acts. Based on the expert medical proof in the case, the Court ruled there was a “significant risk” of exposure to the HIV virus under the meaning of the law to support four of the seven convictions. The Court reversed the remaining three convictions because the expert medical proof did not show a significant risk of exposure.
Read the opinion in State of Tennessee v. Barry H. Hogg, authored by Justice Sharon G. Lee.