HIV-positive man hires new attorney to try to get conviction overturned

Nick Rhoades’ former attorney “had a lack of understanding of basic HIV 101"

Mike Wiser
Published: March 10 2014 | 4:57 pm - Updated: 1 April 2014 | 9:25 am in

DES MOINES — Whether a man who pleaded guilty to criminal transmission of HIV should get his conviction overturned could rest on how much science a hired attorney is supposed to know.

A lawyer for Nick Rhoades told the Iowa Supreme Court that Rhoades’ attorney “had a lack of understanding of basic HIV 101,” which calls into question “his ability to provide effective counsel.”

Rhoades is an HIV-positive man who pleaded guilty in 2009 to criminal transmission of HIV after he was arrested in Black Hawk County following a 2008 encounter with a man he met online.

Rhoades did not tell the man about his HIV status and used condoms during part of the encounter. The man was not infected with the virus, but Rhoades was convicted.

Rhoades 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.

Chris Clark, an attorney for the nonprofit LGBT group Lambda Legal, which represents Rhoades, also argued there was “no exposure” and “no act that could have resulted in the transmission of HIV.”

Iowa’s HIV transmission statute makes it a Class B felony to transmit or engage in conduct that could result in the transmission of HIV from one person to another when one person knows he or she is HIV-positive.

Rhoades already lost his attempt to get the conviction overturned at two lower court levels.

Assistant Attorney General Kevin Cmelik argued the statute said that as long as there’s a chance of transmission, Rhoades runs afoul of it, even if he used a condom.

“It is possibility, not if it is probable,” Cmelik said. “Everyone agrees it is less-likely, but it’s still possible.”

Judge Brent Appel seemed to wrestle with the idea.

“In science, no one talks about absolute impossibility, this is what bothers me,” he said. “Doesn’t the notion of impossibility have to have some pragmatic feature?”

Following the hearing, Clark took some questions outside the courthouse.

“There was absolutely no risk that HIV would be transmitted and a prosecution under Iowa’s HIV criminalization law was completely inappropriate,” he said.

“Unfortunately many, many states have statutes that criminalize consensual sexual activity to some extent by people who are HIV-positive. (The statutes) generally they rely on outdated fears about HIV and the risk of transmission, and they impose incredibly long prison sentences on people for engaging in behavior that really imposes, little, if any, risk at all.”

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