Extra Sentence Upheld for Inflicting Herpes in Rape

A rapist who gives his victim herpes can be sentenced to extra prison time for inflicting “great bodily injury,” a state appeals court has ruled.

A three-judge panel of the 1st District Court of Appeal last week upheld a 30-year sentence for Tony Alfonso Johnson for rape and other crimes against a woman who was kidnaped at knifepoint in June, 1984, when she stopped her car at an intersection in Pacifica.

The court said the woman was diagnosed five days after the rape as having contracted a form of herpes with no known cure. San Mateo County Superior Court Judge Thomas Smith ruled that Johnson had inflicted great bodily injury, grounds for a five-year increase in a 25-year prison term for sexual assault.

The state Supreme Court ruled in 1978 that rape, by itself, had not been defined as great bodily injury, for purposes of increasing a sentence. But the appeals court noted that later rulings had considered some of the consequences of the rape, including pregnancy, to be great bodily injury.

A lasting injury that causes a serious or protracted impairment of part or all of the body, apart from the physical and psychological distress associated with a rape, can constitute great bodily injury, the appeals court said.

In this case, there was ample evidence that the woman “suffered significant physical injury beyond that normally associated with a rape,” said the opinion by Presiding Justice Carl Anderson.

He cited a medical expert’s testimony that the woman probably would carry the virus for the rest of her life; that the disease causes pain and discomfort when active, and that complications can lead to serious infection and even death.