Published January, 2006
State v. Musser, 721 N.W.2d 734, 741 (Iowa 2006)
This is a decision by the Supreme Court of Iowa affirming the defendant's conviction and 25-year prison sentence under Iowa's criminal transmission of HIV statute. The court dismissed all of the defendant's arguments, which included both constitutional and evidentiary challenges. This decision highlights the limitations of free speech and privacy rights arguments used to challenge HIV disclosure statutes. It also illustrates the failure of sentence proportionality arguments when courts overemphasize risk of serious injury and/or death caused by HIV.
The defendant, Adam Donald Musser, is HIV-positive. On three separate occasions in late 2002, Mr. Musser had unprotected sexual intercourse without first disclosing his status to his partner. In April 2003, the partner learned Mr. Musser was HIV-positive, criminal proceedings were initiated, and Mr. Musser was convicted of criminal transmission of HIV in violation of Iowa statute 709C.1(1)(a). He was sentenced to 25 years in prison.
In addition to the case involved in this appeal, Musser was charged in three other cases with violations of Iowa's criminal transmission statute. He was convicted in all four cases and sentenced in each case to a twenty-five-year prison term. Three of the sentences were ordered to run at the same time, but the sentence in this case was ordered to be consecutive, which means that his total sentence is 50 years. Musser's later appeal to the District Court consolidated all four cases.
On appeal, Mr. Musser argued that the HIV transmission statute violated his constitutional rights to privacy and free speech by forcing him to disclose his HIV status to sexual partners. The court agreed that the statute infringed on Mr. Musser's privacy rights and compelled him to disclose information he would prefer not to reveal. However, because the statute promoted the compelling state interest of discouraging the spread of HIV, the court found these arguments unpersuasive and upheld the constitutionality of the statute.
The court dismissed Mr. Musser's claims that the statute was impermissibly vague and overbroad. It found that by considering the statute as a whole and in the context of common knowledge and related HIV transmission statutes, the type of conduct it prohibited was clear. The statute's prohibition of "intimate contact" should have been fair warning that sexual intercourse was prohibited.
The court disagreed with Mr. Musser's claim that his 25-year sentence was grossly disproportionate to the seriousness of his offense. It compared first-degree robbery to criminal transmission of HIV, in that both crimes carry potential for serious injury and death. It likened a robber with a gun or knife to an HIV-positive defendant "armed with a dangerous virus," and cited case law supporting 25-year sentences for conviction of first-degree robbery.
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