State AIDS Directors Join Challenge to Conviction
of HIV-Positive Iowa Man Sentenced to Prison and Sex Offender Status
National Alliance of State and Territorial AIDS Directors Join Legal Organization:
Condom Use, Not Disclosure, is "Cornerstone" of HIV Prevention
New York, June 28, 2012 – The National Alliance of State and Territorial AIDS Directors (NASTAD), representing the nation's chief state health agency staff who administer HIV/AIDS and viral hepatitis healthcare, prevention, and related programs across the country, joined The Center for HIV Law and Policy and HIV Law Project in a friend-of-the-court brief in support of post-conviction relief for Nick Rhoades, an HIV-positive Iowan man sentenced to 25 years in prison and lifetime sex offender registration for consensual sex.
In the case on appeal, State. v. Rhoades, the defendant had a one-time sexual encounter with the complainant, Adam Plendl, during which they used a condom. When Plendl learned that his partner might be HIV-positive, he went to the police, and Rhoades was charged under Iowa's "criminal transmission of HIV" law. Despite the fact that he used a condom and was on treatment that eliminates any transmission risk to near-zero, on his lawyer's advice Rhoades pleaded guilty to intentionally exposing Plendl to HIV, for which he received the maximum sentence of 25 years in prison and lifetime registration as a sex offender. The court later suspended his prison sentence after Rhoades had served a number of months in prison, and he was placed on probation for five years and on the sex offender registry with its mandatory reporting and monitoring requirements.
"Consensual sex that poses little more than a theoretical risk of transmission is consistent with state and federal public health goals," said Randy Mayer, Chair of NASTAD. "It is also consistent with common sense and human experience. It's latex, not what you think you know about a partner, that prevents HIV and STI transmission. Government leaders should speak with one voice on this, promoting risk reduction through condom use and other safer sex practices, and encouraging, without mandating, an individual's disclosure of HIV status to his or her partners."
HIV transmission occurs overwhelmingly as a consequence of unprotected anal and vaginal intercourse, and even then is not easily transmitted. Transmission risks are further reduced to near-zero – essentially, only a theoretical risk – when condoms are properly used and when the HIV-positive partner is on effective antiretroviral therapy (ART). NASTAD, The Center for HIV Law and Policy, and HIV Law Project point out in their brief that Iowa's law explicitly contemplates the possibility that an HIV-positive person may engage in safer sex without disclosing HIV status.
"Condom use during vaginal and anal intercourse is the single most important safer sex practice reflected in public health efforts, and reduces HIV transmission risk to near-zero," said Adrian Guzman of The Center for HIV Law and Policy. "The defendant was charged and prosecuted on the basis of his health status despite the fact that his conduct was wholly consistent with Iowa state and federal public health policies and practices."
Thirty-four U.S. states and territories have laws criminalizing HIV "exposure" (including through risk-free conduct such as spitting and biting) or nondisclosure of an individual's HIV status to sexual partners. Sentences imposed on people convicted of HIV-specific offenses can range in some states from 10-30 years even in the absence of intent to transmit HIV or actual transmission, as in the case of Rhoades. A growing number of defendants is also being required to register as sex offenders.
"Identifying HIV or any disease as something that should be the basis of criminal charges, absent any evidence of intent to do harm, is terrible for public health efforts," said Tracy Welsh, Executive Director of HIV Law Project. "Persistent ignorance about how HIV is transmitted, and what it means to have HIV in 2012, is a major cause of these laws; they're based on stigma, not science."
"This case is the perfect manifestation of HIV stigma," Guzman added. "Everything Rhoades did evidences a complete lack of intent to expose his partner to HIV, let alone transmit it. He followed the essential elements of HIV prevention 101 and what does he get? Twenty-five years in prison, and life-long branding as a sex offender. It's not only unscientific – it's inhumane."
In 2010, Rhoades filed an Application for Post-Conviction Relief, arguing that he had received ineffective assistance from his counsel who had advised him to plead guilty, but the application was denied by the court. Rhoades is currently appealing to the Iowa Supreme Court. His case is one of hundreds across the U.S. where people with HIV face criminal charges and long sentences on the basis of their HIV status for no-risk behavior and consensual adult sex.
The case is Nick Rhoades v. State of Iowa, read the brief here. The amicus brief was authored by attorneys for The Center for HIV Law and Policy and HIV Law Project, with assistance from Earl Kavanaugh of Harrison & Dietz-Kilen, O.J.C. in Des Moines, Iowa.
The Center for HIV Law and Policy is a national legal and policy resource and strategy center that works to reduce the impact of HIV on marginalized communities by securing the human rights of people affected by HIV. We increase the advocacy power of advocates, and community members, and advance policy initiatives that are grounded in and uphold social justice, science, and the public health. We do this by providing an accessible web-based resource bank; leadership and analysis on key policy issues; and direct back-up to advocates.
For more information about The Center for HIV Law and Policy, go to: www.hivlawandpolicy.org
For information about The Positive Justice Project, a national project advocating for the modernization of U.S. HIV criminalization laws and policies, go to: www.hivlawandpolicy.org/public/initiatives/positivejusticeproject
HIV Law Project believes that all people deserve the right to live with dignity and respect, the right to be treated as equal members of society, and the right to have their basic human needs fulfilled. Through innovative legal services and advocacy programs, HIV Law Project fights for the rights of the most underserved people living with HIV/AIDS.
For more information about HIV Law Project, go to: www.hivlawproject.org/