Published December, 2017

State v. Batista, Slip Opinion No. 2017-Ohio-8304 (2017)

The Supreme Court of Ohio rejected Orlando Batista’s constitutional challenges to the state’s HIV exposure law that criminalizes sexual conduct for PLHIV who know their status and do not disclose it to sexual partners prior to the sexual conduct. The Supreme Court affirmed the denial of his motion to dismiss, finding that it violated neither his right to free speech, nor the Equal Protection Clauses of the U.S. and Ohio Constitutions.

Following in the footsteps of the Missouri and Illinois Supreme Courts, the Court held that since the statute prohibits people living with HIV from engaging in sexual conduct without disclosing their HIV status, it regulates conduct, not speech.

The Court reviewed the Equal Protection claim under rational basis because the statute implicated neither a suspect classification (people living with HIV) nor a fundamental right. Under this lenient standard of review, the Court upheld the statute because it was rationally related to a legitimate government interest, “curbing HIV transmission to sexual partners who may not be aware of the risk.” Moreover, the Court said, “a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” That is, it deferred to the Ohio General Assembly’s policy considerations.

Justice Dewine, in a concurring opinion, agreed with the State’s argument that fully informed consent to sexual activity is not possible when a person living with HIV who knows their status does not disclose that status prior to the sexual activity.