Iowa Finally Gets It: Having Sex While HIV Positive is Not a Crime
Having protected sex while HIV positive should not be a crime, yet for one man from Iowa, it meant a 25-year prison sentence and life branded as a sex-offender. Fortunately, Iowa’s Supreme Court has just overturned that decision.
Writing for the majority, Justice David Wiggins said: “Today we are unable to take judicial notice that an infected individual can transmit HIV when an infected person engages in protected anal sex with another person or unprotected oral sex, regardless of the infected person’s viral load. The evidence…shows there have been great strides in the treatment and the prevention of the spread of HIV.”
In 2008, Nick Rhoades, now 39, had protected consensual sex with a man called Adam Plendl who did not know that Rhoades was HIV positive. When Plendl later found out the police became involved and, even though Plendl did not contract the virus, Rhoades was convicted of knowingly risking passing on HIV despite having used a condom and having a viral load that was so low he could not have passed on the virus to Plendl anyway.
Rhoades received the maximum conviction under Iowa’s HIV criminalization law, which was 25 years in prison and the most serious kind of sex offender classification. He was later granted a five-year probation. At the time of the conviction Rhoades had in fact entered a guilty plea simply because his counsel had failed to inform him of exactly what the law entailed. After he found out, he lodged an application for Post-Conviction Relief on the basis that he had been misled about the need for a guilty plea, but the court denied his application. Lambda Legal then took up his case, and on Friday June 13 Iowa’s Supreme Court overturned the sentence, finding that in light of medical evidence about how HIV can and cannot be transmitted, the conviction was both overzealous and unlawful.
As a result of the Supreme Court’s ruling, Rhoades’ sentence is now considered unsafe, chiefly because at the time of arrest the law specifically requires that someone “intentionally expose” a sexual partner to the virus — something that Rhoades’ use of a condom would seem to preclude.
Technically the court’s ruling does not resolve Rhoades’ case. Instead, Rhoades will return to Black Hawk County District Court where state prosecutors will have a further opportunity to argue that Rhoades did violate the law. They may attempt to establish that because Rhoades did not disclose his HIV status he put Pendle at risk, however with the court’s ruling specifically highlighting the several factors that meant Rhoades posed no danger at the time of sexual contact, including his choice to use a condom, the threshold to prove that the conviction remains viable is now very high. If state prosecutors cannot prove that, Rhoades will then have his guilty plea expunged and the sex offender classification removed from his record.
This case is bigger than just Rhoades. Lambda Legal now wants lawmakers to amend the state’s infectious disease law to ensure that never again is someone convicted simply for having sex while HIV positive which, absent of any crime, appears to be what Rhoades and a number of others have been convicted for.
“In light of today’s decision, we believe that additional modifications to the state’s infectious disease law should be considered,” Scott Schoettes, HIV Project Director for Lambda Legal. “Great strides were made through the law’s recent amendment, and we are hopeful that today’s decision — acknowledging the effectiveness of various HIV prevention measures — will fuel the Iowa Legislature’s clear desire to bring the state’s law fully up to date.”
Lambda Legal estimates that there are 39 states in the United States that have either specific statues to criminalize people living with HIV who are not celibate, or use broader infectious diseases laws to bring severe criminal charges against HIV positive people who engage in sexual contact. The legal group believes that there are more than 160 people who have been tried in the past four years under such laws, with a number of prosecutions hinging on outdated science about HIV transmission. Just as concerning, there are pushes to further criminalize people living with HIV/AIDS, most notably a bill that appeared last year in Kansas that would have allowed for the forced quarantine of people with HIV.
As such, Lambda Legal aims to use the Iowa Supreme Court’s decision as a template to challenge other states’ overreaching HIV transmission.
“The importance of the Iowa Supreme Court’s decision cannot be overstated,” Christopher Clark, an attorney with Lambda Legal, is quoted as saying. “We look forward to making these arguments again and to taking this Court’s clear guidance on the interpretation and application of these types of laws to the many jurisdictions in which HIV criminalization remains a pressing issue.”
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