Published January, 2011

State v. Tabor, No. 0-906 / 10-0475 (Iowa Ct. App. 2011)

In this Iowa case, Tabor appealed his conviction for criminal transmission of HIV, in violation of Iowa Code section 709C.1 (2009). His conviction was upheld. He appealed on the grounds that the jury instructions on reasonable doubt were erroneous, but the appeals court felt they accurately stated the law and affirmed his conviction.

Iowa Code section 709C.1 (2009) is titled "Criminal transmission of human immunodeficiency virus" but states in part that a person is guilty of criminal transmission of HIV if he knows he is HIV positive and then "Engages in intimate contact with another person". "Intimate contact" is defined as "the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus." While the statute is titled "Criminal Transmission of HIV" neither the intent nor the actual transmission of HIV are required for prosecution. The only affirmative defense is disclosure, and condom use or non-transmission are not accepted defenses. The statute has survived challenges that it is unconstitutionally vague in State v. Keene, 609 N.W.2d 360 (Iowa 2001) and State v. Stevens, 719 N.W.2d 547 (Iowa 2006). Under 709C.1 (2009), criminal transmission is a class "B" felony with sentences up to twenty-five years.

Tabor objected to the jury instruction given on reasonable doubt, and urged the court to give the new model jury instruction approved by the Iowa State Bar Association jury instruction committee in March 2009, which includes language that could be interpreted as requiring a heightened burden of proof to convict. The trial court declined to use the new model instruction and used an older and shorter instruction instead. Because an Iowa Supreme Court case from 1980 explicitly approved a similar jury instruction to the one actually given on the grounds that it provides an objective standard and is not required to incorporate more then one standard, the appeals court found that the jury instruction was sufficient and an accurate statement of the law.

Tabor was convicted on the basis of his three year long relationship with a woman who alleged that she did not know he was HIV positive. She was informed of Tabor's status by a police officer while speaking to him regarding a different matter. When she was subsequently tested for HIV, she tested positive.