DES MOINES – The case of an HIV-positive Iowa man initially sentenced to 25 years in prison for a one-time sexual encounter could rest on how a three-judge panel interprets the word “intentional.”
In addition to his sentence, Nick Rhoades was required to register as a sexual offender after he pleaded guilty in 2008 to violating a state statute that makes it illegal to knowingly transmit the human immunodeficiency virus.
Rhoades and a man he met online, Adam Plendl, used a condom when they engaged in intercourse and Plendl did not contract HIV. Nonetheless, Rhoades pleaded guilty to the charge on the advice of his attorney and spent time in the Black Hawk County Jail and Clarinda State Prison before his sentence was reduced in 2010 to time served, but he still has to register as a sex offender.
The Iowa Court of Appeals heard arguments Wednesday by the nonprofit gay rights advocacy group Lambda Legal on behalf of Rhoades’ wish to have his record cleared.
“This was a wildly inappropriate prosecution by the state,” said Lambda attorney Christopher Clark, who argued the case in front of Justices Darrell Goodhue, Anuradha Vaitheswaran and Richard Doyle. “There’s no basis for a conviction under the law here, and we’re optimistic that the court will see that.”
Iowa is one of 39 states with laws that criminalize the transmission of HIV in certain circumstances.
Clark argued that the meeting between Rhoades and Plendl did not meet that standard for criminality under the law since there was no intent to infect Pendl with the virus inasmuch as they used a condom and because no ejaculate was exchanged.
“Intentional is a specific word with a thorny history,” Assistant Attorney General Kevin Cmelik argued for the state. “I would submit that (intent) would be protected or unprotected sex … not the intent of exchanging bodily fluids. If the Legislature wanted to criminalize exchange, they would have criminalized that.”
Sen. Matt McCoy, D-Des Moines, filed a bill this year to strike the current statute and replace it with a law that requires transmission of HIV from one person to another before criminal penalties apply. Under the current statute, a person does not have to actually transmit the virus to another in order to run afoul of the law.
“With intent, it would be a Class C felony compared to now, where it’s a Class B felony,” McCoy said. “There’s also a sliding scale without intent where it could go down to a misdemeanor.”
McCoy said he had the votes to get it through the chamber, but faced some opposition in the caucus from Democrats who wanted language that would require HIV-positive people to inform potential partners of their status.
“But that becomes a he-said-she-said argument in cases,” McCoy said. “First and foremost, we support disclosure, though, so we’re working on the language.”
The appellate court will release its decision at a later date.
Text of 709C
Criminal transmission of human immunodeficiency virus.
1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:
a. Engages in intimate contact with another person.
b. Transfers, donates, or provides the person’s blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person.
c. Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.
2. For the purposes of this section:
a. “Human immunodeficiency virus” means the human immunodeficiency virus identified as the causative agent of acquired immune deficiency syndrome.
b. “Intimate contact” means 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.
c. “Intravenous or intramuscular drug paraphernalia” means any equipment, product, or material of any kind which is peculiar to and marketed for use in injecting a substance into or withdrawing a bodily fluid from the human body.
3. Criminal transmission of the human immunodeficiency virus is a class “B” felony.
4. This section shall not be construed to require that an infection with the human immunodeficiency virus has occurred for a person to have committed criminal transmission of the human immunodeficiency virus.
5. It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew that the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.
98 Acts, ch 1087, §7
Referred to in §692A.101, 692A.102