¶ 15 Thus, to act in a manner that threatens a victim, the offender must communicate the threat to the victim by word or deed. A risk of future harm is not a threat of harm. See Black's Law Dictionary 1442 (9th ed. 2009) (defining "risk" as "[t]he uncertainty of a result, happening, or loss; the chance of injury, damage, or loss; esp., the existence and extent of the possibility of harm").
¶ 16 A sexual assault creates many risks for the victim: the risk of being infected with a sexually transmitted disease, the risk of an unwanted pregnancy, the risk of posttraumatic stress. These and other consequences of the crime are among the reasons that sexual assault is a serious felony. These risks, however, are not threats because they are not communicated by the assailant to the victim during the commission of the offense. Thus, in the present case, the victim was not threatened by the defendant.
¶ 17 The State argues that defendant "acted in such a manner as to *** endanger the life of the victim" (720 ILCS 5/12-14(a)(3) (West 2006)), when he exposed her to HIV, relying on this court's construction of the term "endanger" in People v. Collins, 214 Ill. 2d 206, 218-19 (2005) (finding that the term "endanger" in the statute defining the offense of reckless discharge of a firearm did not require that a specific individual be placed in actual danger by the discharge of the firearm). The State also cites our decision in People v. Jordan, 218 Ill. 2d 255, 270 (2006) (finding that the term "endangerment" in the statute defining the offense of child endangerment did not require conduct " 'that will result or actually results in harm, but rather to conduct that could or might result in harm' " (quoting Collins, 214 Ill. 2d at 215).
¶ 18 Defendant notes that focusing on the meaning of the word "endanger" without considering whether the victim was in actual danger "during" the assault would violate the principle of statutory interpretation that we will not focus on words and phrases in isolation from other relevant portions of the statute. People v. Glisson, 202 Ill. 2d 499, 505 (2002).
¶ 19 We find Collins and Jordan to be of little assistance. The statute at issue in Collins defines the offense of reckless discharge of a firearm as "discharging a firearm in a reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5(a) (West 2004). We first interpreted the statutory language to conclude that reckless discharge of a firearm does not require "the intentional firing of a weapon knowingly and directly at someone." Collins, 214 Ill. 2d at 215. Indeed, the act of intentionally firing at a particular individual would be the offense of aggravated discharge of a firearm. 720 ILCS 5/24-1.2 (West 2010).
¶ 20 Relying on the principle that the legislature did not intend an absurd result and on the legislative history, this court concluded that in this particular statute, "endangered" does not mean "actually endangered" in the sense of being directly fired upon. Collins, 214 Ill. 2d at 216.
¶ 21 We might also have noted that the mens rea required for this offense is recklessness, not intent. "A person is reckless or acts recklessly, when [that person] consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow ***." 720 ILCS 5/4-6 (West 2006). Risk is the essence of recklessness. The discharge of a firearm is reckless when the act creates a substantial and unjustifiable risk to others.
¶ 22 However, the offense of aggravated criminal sexual assault is not a crime of recklessness; it requires more than disregarding the risk of future harm. By its plain language, it requires actual endangerment of the victim or another person during the commission of the offense. 720 ILCS 5/12-14(a)(3) (West 2006).
¶ 23 Finally, the offense of reckless discharge of a firearm does not require that the endangerment exist during the commission of the offense. Rather, the statute requires that someone be endangered as an immediate result of the discharge of the firearm. If the surrounding circumstances are such that one or more other persons are endangered by the act, the act is reckless.
¶ 24 Thus, in Collins, this court found sufficient evidence that others were endangered by the defendant's discharge of a firearm into the air as many as 15 times: two women who were inside the adjacent home, defendant's two co-defendants who were present, and two officers who were approaching the defendant in his backyard. Collins, 214 Ill. 2d at 218. Given these facts, "any rational trier of fact could have found defendant guilty [of reckless discharge of a firearm] beyond a reasonable doubt." Id. at 218-19.
¶ 25 We conclude that Collins does not inform our interpretation of a statute requiring that "during the commission of the offense," the accused "endanger[ ] the life of the victim." In Collins, the word "endangerment" was interpreted in the context of a statute requiring a different mental state, recklessness, and that the accused endanger others as a result of his act, not that he endanger others during the commission of the act.
¶ 26 In Jordan, this court invalidated the portion of the child endangerment statute creating a mandatory rebuttable presumption of child endangerment if an individual leaves a child of six years of age or younger in a motor vehicle for more than 10 minutes. Jordan, 218 Ill. 2d at 266. Thus, the only provision in the statute regarding time or duration was severed. Id. at 267.
¶ 27 In the remaining statutory language, the offense of endangering the life or health of a child is defined as willfully causing or permitting "the life or health of a child under the age of 18 to be endangered" or permitting a child "to be placed in circumstances that endanger the child's life or health." 720 ILCS 5/12-21.6 (West 2006).
After noting that the required mental state is willfulness, we quoted Collins for the proposition that the term "endanger" refers to "a potential or possibility of injury." Jordan, 218 Ill. 2d at 270. Thus, under this statute, the risk of injury is sufficient; actual injury is not required.
¶ 28 In response to the defendant's challenge to the sufficiency of the evidence, we concluded that a rational trier of fact could have found that the defendant knew he was placing his child's life or health at risk when he left the infant, who was dressed in a winter coat, gloves, and a hat, and covered with a blanket, alone in his car for 40 minutes to an hour when the outside temperature was "in the twenties." Id. at 270-71.
¶ 29 Again, the statute at issue in Jordan did not contain a requirement that the defendant endanger the victim during the commission of the crime. In addition, the nature of the crime requires the trier of fact to give some weight to the element of time. A child may or may not be endangered the moment the individual closes the car door and walks away, but the child's risk of harm increases with every passing minute. The trier of fact must determine, depending on the facts of each case, whether endangerment occurred. Ultimately, endangerment in this context is a question of fact.
¶ 30 Thus, although the statutes interpreted in these two cases did contain the term "endanger," the interpretation of these statutes does not assist us in the interpretation of section 12-14(a)(3), which requires that the endangerment "exist [ ] during *** the commission of the offense."
¶ 31 The State's analogy of transmission of HIV to administering a "slow acting poison" is not helpful. The State argues that HIV, which may take years or even decades to cause AIDS, is similar to a poison that causes no harm when administered, but slowly kills its victim. The analogy is apt only if the victim becomes infected with HIV as a result of a sexual assault. In such a case, the defendant can be convicted of aggravated criminal sexual assault, not because he endangered the life of the victim during the assault, but because he caused "bodily harm *** to the victim" (720 ILCS 5/12-14(a)(2) (West 2006)), by infecting her with a potentially deadly virus.
¶ 32 The State and the defendant also argue over the effect of the separate statute defining the offense of criminal transmission of HIV (720 ILCS 5/12-16.2 (West 2006) (now 720 ILCS 5/12-5.01). This statute makes it a crime for a person who knows that he or she is infected with HIV to "engage[ ] in intimate contact with another." 720 ILCS 5/12-16.2(a)(1) (West 2010). This language encompasses both consented and unconsented contact. However, it is an affirmative defense if the "person exposed knew that the infected person was infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that knowledge." 720 ILCS 5/12-16.2(d) (West 2010).
¶ 33 Thus, in the case of criminal sexual assault where the defendant was HIV-positive at the time of the offense and exposed the victim to the virus, he could be charged with aggravated criminal sexual assault if the victim is infected (720 ILCS 5/12-14(a)(2) (West 2010)), and with criminal sexual assault and criminal transmission of HIV if the victim does not become infected (720 ILCS 5/12-16.2 (West 2010)).
¶ 34 The State describes this as a "windfall" for the HIV-positive offender, whose crime will not be elevated to an aggravated offense if the victim should happen to be spared the infection. However, if an individual is convicted of criminal transmission of HIV and criminal sexual assault, aggravated criminal sexual assault, or predatory criminal sexual assault of a child, the sentences must be imposed consecutively, rather than concurrently. 730 ILCS 5/5-8-4 (West 2010). As a result, an HIV-positive individual who commits a sexual assault but whose victim escapes infection will not receive a windfall; he will be punished with a consecutive sentence for knowingly exposing his victim to HIV. He will serve a longer sentence than the sex offender who is not HIV-positive, but shorter than the offender who actually infects his victim. This is the scheme the legislature has put in place.
¶ 35 We, therefore, hold that an accused does not commit aggravated criminal sexual assault as defined in section 12-14(a)(2) when he commits the crime knowing that he is HIV-positive.
¶ 36 As a practical matter, we note that the State's preferred interpretation of the statute could have significant unintended consequences. The State's reading of the statute, equating mere exposure to a communicable disease to endangering the life of a victim, could apply just as well to exposure to the HPV virus, which causes cervical cancer, or to exposure to hepatitis C, which can lead to liver cancer, or exposure to tuberculosis, which can be fatal.
¶ 37 In addition, interpreting the aggravated criminal sexual assault statute in this way could place at issue the victim's HIV status prior to the attack. If she were already HIV-positive, the assault could not have endangered her life. As a result, defendants in such cases could seek discovery of their victims' medical histories in an effort to negate this element of the crime. An HIV-positive defendant might also argue that his use of a condom during a sexual assault negated this element of the crime, and the jury would have to consider testimony regarding the breakage rates of condoms and whether the condom was used properly to determine whether the victim was or was not endangered. If it is the legislature's intent that sexual assault trials consider the victim's HIV status and the efficacy of condom use during rape, it can amend the statute accordingly.
¶ 38 CONCLUSION
¶ 39 Defendant committed an horrific crime and has done immeasurable harm to his daughter. He deserves to be punished to the full extent of the law. However, despite the State's repeated assertion that we should view the evidence in this case "in the light most favorable to the prosecution," as if this were a question of the sufficiency of the evidence, we find that the plain language of section 12-14(a)(3) of the Criminal Code requires that the accused threaten the victim or endanger her life during the commission of the offense and that, as a matter of law, mere exposure of the victim to HIV during the commission of the offense did not threaten or endanger her life. We, therefore, affirm the judgment of the appellate court. With regard to sentencing, the appellate court correctly instructed the trial court that when defendant is resentenced for this criminal sexual assault, the sentence for criminal transmission of HIV must be imposed consecutively to that sentence and to the sentences of 15 years for each of the two other counts of criminal sexual assault of which he was convicted.
¶ 40 Appellate court judgment affirmed.