HARRISBURG, Pa. (AP) – A man accused of concealing his HIV-positive status until after he had sex with his lover can be prosecuted criminally, a Pennsylvania appeals court ruled.

A three-judge Superior Court panel said a Berks County jury should decide whether Samuel Cordoba’s alleged actions amounted to a “gross deviation from the standard of conduct that a reasonable person would observe.”

The appeals court reversed a county judge who had thrown out the charge of reckless endangerment.

Superior Court Judge John T. Bender noted that not every exposure to the bodily fluids of someone who is HIV-positive is infectious.

“However, in order to make out a prima facie case for recklessly endangering another person, the commonwealth need only establish that the defendant’s conduct placed or may have placed another in danger of serious bodily injury or death,” Bender wrote.

The alleged victim discovered prescription medication he suspected was used to treat an HIV infection after having consensual oral sex with Cordoba in June 2003. Cordoba allegedly later admitted to the man that he was HIV-positive or had AIDS.

The victim has since undergone regular testing and results have been negative for any infection, according to court records.

Cordoba’s lawyer, Tom Lonardo, said he wants to take the case to the state Supreme Court because prosecutors refiled the charge after it had been dismissed for the first time. The appeals court decision concerned the appeal of the second dismissal of the charge by Berks County Judge James M. Bucci.

Lonardo said the statute of limitations has expired, and noted Cordoba spent six months in jail awaiting trial for a charge that carries a two-year maximum sentence.

“This opinion basically criminalizes HIV sex, period,” Lonardo said. He declined to say whether Cordoba knowingly concealed HIV or AIDS from the alleged victim.

Bucci wrote in a January opinion that there was no evidence Cordoba knew he was HIV-positive at the time he had sex with the alleged victim and there was no evidence that HIV can be transmitted by the type of sex the two men engaged in.

State law makes it a felony for an HIV-positive person to perform prostitution and there are laws that make it a crime for prisoners to expose guards to HIV-positive bodily fluids.

“But the Legislature, despite having ample opportunity to do so, has not expanded such laws to the general public,” Bucci wrote.

Allowing such prosecution, the judge said, could “open the floodgates to jilted lovers and angry spouses to file charges after a relationship has soured.”

Prosecutors wrote in an appeal brief that the allegations fit the language of the reckless-endangerment statute.

“He exposed another to the risk of HIV infection without at least informing that other person of the danger,” they wrote. “The seriousness of HIV infection is so severe that for defendant to have acted in this manner is a gross deviation from any reasonable standard of conduct.”