Published in the WashingtonBlade.com, June 13. 2014
The Iowa Supreme Court set aside on Friday the conviction of a gay man in the state who was once sentenced to 25 years in prison under an HIV criminalization law for engaging in sex without disclosing he had HIV.
In a 6-1 decision, justices vacated lower court decisions denying Nick Rhoades relief for his sentence, remanding the case to the district court on the basis that his trial counsel was ineffective because it submitted a guilty plea not based on the facts about HIV.
“Here, we find the fact was subject to reasonable dispute,” writes Justice David Wiggins. “At the time of the plea, Rhoades’s viral count was nondetectable, and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person’s blood, semen or vaginal fluid or whether transmission was merely theoretical.”
In 2008, Rhoades had a one-night-stand with Adam Plendi. After meeting online at Gay.com, Rhoades went to Plendi’s home in Cedar Falls and the two had consensual sex. Rhoades received unprotected oral sex, and then the two had protected anal sex in which Plendi was the receptive partner. Rhoades is HIV-positive, but didn’t disclose that information to Plendi, who wasn’t infected by the encounter.
After later learning that Rhoades is HIV-positive, Plendi contacted the police, who charged Rhoades with criminal transmission of HIV. Under advice from his attorney, Rhoades pled guilty to the charges and was given the maximum sentence of 25 years in prison and classified as a sex offender. Several months later the court reconsidered the decision, suspended Rhoades’ prison sentence and placed him on supervised probation for five years.
In March 2010, private attorneys on behalf of Rhoades applied for post-conviction relief, arguing his attorney who advised him to plead guilty had failed to inform him of the specifics of the statute. Rhoades later contended he didn’t violate the law because the anal sex was protected and during oral sex he didn’t intend to ejaculate.
But in December 2011, the district court denied Rhoades’ claim for post-conviction relief. Lambda Legal assumed representation for him in 2012, but that court decision was affirmed by the Iowa Court of Appeals in October. The decision from the Supreme Court on Friday reverses those decisions.
Christopher Clark, counsel for Lambda Legal and attorney representing Rhodes, said the Supreme Court decision is in line with the modern understanding of HIV transmission.
“We applaud the Court for applying the law in light of current medical understanding of how HIV is and is not transmitted,” Clark said. “An individual who takes precautions to prevent transmission should not be considered a criminal for choosing to be sexually active, and we are very pleased that the Court agrees.”
But the ruling wasn’t unanimous. Justice Bruce Zager wrote in his dissent that he disagrees Rhoades’ counsel was ineffective for allowing him to plead guilty.
“In the months leading up to the criminal offense, and in the subsequent months prior to Rhoades’s decision to plead guilty, we cannot forget it is Rhoades who had all of the relevant facts,” Zager writes. “Rhoades had all of the medical information regarding his HIV status and his viral load. Rhoades knew whether he should engage in intimate contact, whether this intimate contact needed to be protected or unprotected, the reasons he believed the intimate contact did or did not need to be protected, and whether there was a possibility that the HIV could be transmitted.”
The decision is handed down just weeks after Iowa Gov. Terry Branstad signed into law a measure softening his state’s HIV criminalization law so that it only makes illegal purposefully intend to transmit the disease. Also, instead of singling out HIV, the law now includes other infectious diseases like tuberculosis, meningitis and hepatitis and makes criminal sentencing a tiered system.
Scott Schoettes, HIV Project Director for Lambda Legal, said his organization hopes the results of the case will fuel efforts for further modification to the law.
“In light of today’s decision, we believe that additional modifications to the state’s infectious disease law should be considered,” Schottes said. “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.”
According to Lambda, 39 states have HIV criminalization laws, or have brought HIV-related criminal charges, which have resulted in more than 160 prosecutions within the United States in the past four years. Critics say HIV criminalization encourages discrimination against people living with HIV, negatively prevention responsibility, creates a disincentive to getting tested for the disease and may actually discourage disclosure of HIV status.
Sean Strub, an Iowa-native HIV activist and executive director of the Sero Project, also praised the decision, but said more work is needed.
“Nick’s victory adds even more energy to the growing movement for HIV criminalization reform,” Strub said. “But while we celebrate Nick’s freedom, we must remember those who are still incarcerated, still suffering from convictions for behaviors that would otherwise be unremarkable if they did not have HIV. Kerry Thomas is serving 30 years in Idaho, for the same crime, failing to disclose one’s HIV status before having sex. Like in Nick’s case, all parties involved also agreed that Kerry always used a condom and had an undetectable viral load.”