Prosecutor says Iowa’s proposed HIV law could affect pending cases, prompt appeals

Many unsure of how cases will be prosecuted going forward until bill is signed

By Trish Mehaffey, The Gazette
Published: May 2 2014 | 5:00 pm - Updated: 2 May 2014 | 8:52 pm in Courts, Government Rotator, Iowa,

A prosecutor said Thursday the revised bill criminalizing the transmission of HIV will likely have county attorneys reconsidering pending cases and wondering if they can even pursue those charges or refile under the proposed law.

First Assistant Linn County Attorney Nick Maybanks said the intent element of the bill is the biggest change. The current law didn’t require that the victim be infected under the 25-year penalty or “B” felony charge. There is also a “D” felony charge with 5-year penalty and a misdemeanor charge if the infected person doesn’t infect the victim.

Maybanks said the other big change in the proposed bill is the retroactive elimination of the requirement to register as a sex offender for those convicted under the current law. If the bill is signed into law, there will likely be some appeals or post-conviction relief actions filed.

However, he pointed out, there will be a lot of unknowns on how these cases will be prosecuted going forward until the bill is signed into law by Gov. Branstad and goes before judges for rulings regarding matters of law.

“I do understand the perceived harshness of the crime and the validity that HIV infected individuals may have not always been forthright about their condition (to a partner) because of the penalties,” Maybanks said. “On the other hand it is a public safety issue and there has to be some accountability. The good thing is these cases don’t come up that often and I think most (of HIV status) aren’t reckless in that way.”

There is one pending case in Linn County and Maybanks said he only knew of one other that had been prosecuted in recent years.

Maybanks said looking at some research, he found Iowa had the second harshest law behind Tennessee.

The other big change in the proposed bill is the retroactive elimination of the requirement to register as a sex offender for those convicted under the current law, Maybanks said. If the bill is signed into law, there will likely be some appeals or post-conviction relief actions filed, he said.

Tami Haught, of Community HIV/Hepatitis Advocates of Iowa Network (CHAIN), who supported and lobbied for the bill, along with One Iowa, said Thursday she hopes that by modernizing the laws in Iowa it will encourage other states with similar legislation to do the same.

“HIV is not a crime; our laws here in Iowa and across the country need to reflect this fact,” Haught said.

Supporters also pointed out the proposed “contagious or infectious disease transmission” bill will no longer be HIV-specific. The bill is expanded to include hepatitis, tuberculosis and meningococcal disease, AIDS and HIV.

“This bill will send an important message across the nation, most significantly to those states that still operate under the misinformation of the past,” Donna Red Wing, executive director for One Iowa, said Thursday.

An analysis conducted by the Centers for Disease Control and the Department of Justice researchers found by 2011, a total of 67 laws specifically focus on individuals living with HIV have been enacted in 33 states. The laws vary as to what is criminalized behavior and result in penalties.

In 24 states, laws require those aware of their HIV status to disclose to their sexual partners, 14 states require disclosure to needle-sharing partners and 25 states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission, according to the study.

This analysis was limited to HIV-specific criminal exposure laws. States can also use general criminal laws like reckless endangerment and attempted murder to prosecute individuals accused of exposing others to HIV.

Comments: (319) 398-8318; trish.mehaffey@sourcemedia.net


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