Published May, 2009

State v. Eversole, __ N.E.2d __, 2009 WL 1264295 (Ohio Ct. App. 2009)

In violation of an Ohio HIV notification law, Jonathon Eversole tested positive for HIV and engaged in a sexual relationship with another person without first disclosing his HIV status. Eversole pled guilty and was sentenced to two years in prison. After serving approximately six months in prison, he was granted judicial release and placed on community control (a kind of probation) for five years. One of the terms of Eversole's release was that he "[h]ave no sexual contact with any individual without prior approval of the court as to such said individual." If he wanted to engage in sexual contact with any person, that person must first appear before the probation officer and provide written, notarized documentation indicating that the person was aware of the man's HIV status.

Eversole eventually admitted to his probation officer that he had been engaging in sexual activity with two other people, but that he had first informed them of his HIV status. One of the people had appeared before the officer, but the other had not. The court then revoked his community control based on this violation, even thought there was no dispute that Eversole's sexual partners knew of his HIV status prior to having sex with him. On appeal, Eversole argued that the underlying purpose of the condition was to ensure that his sexual partners were aware of his HIV status and, because he had told them about his HIV, he had substantially complied with the purpose of the condition. The appeals court disagreed, stating that the condition was a term of the judicial release for a reason, and that the trial court acted within its authority to revoke the community control. Unfortunately, neither Eversole nor his lawyer objected on the record to the terms of release at the time they were imposed.

The dissent argues that this particular condition of Eversole's release failed to meet a reasonableness standard, as required by Ohio precedent, because it was overbroad and constituted a substantial interference with sexual activity between consenting adults. The dissent explains that the probation officer was neither in a position to approve or disapprove high-risk sexual activity, nor qualified to dispense advice about safe sex. According to the dissent, just because a condition is well-intentioned does not make it reasonable, appropriate, or even constitutional. Even if the condition had been appropriate (which the dissent finds unlikely), the fact that it covers all forms of sexual contact, including those that bear little or no risk of HIV transmission, makes it unreasonably broad. Because the man did inform his sexual partners of his HIV status, the dissent finds that he complied with the spirit of the condition and that his judicial release should not have been revoked.