Communication, responsibility at core of HIV conviction reversal

Published: June 13 2014 | 12:00 pm - Updated: 13 June 2014 | 1:13 pm in Exact change by Lynda Waddington,

Eastern Iowa man once faced 25 years for consensual encounter —

The Iowa Supreme Court has effectively set aside the conviction of an Eastern Iowa man who pleaded guilty in 2009 to criminal transmission of HIV.

Nick Rhoades, 39, was originally sentenced to 25 years in prison, but was released on probation after serving only a few months. He was also required to register for life as a sex offender.

The charges followed Rhoades’ consensual Black Hawk County encounter with another man. Although undergoing treatment for HIV, police and court records indicate Rhoades did not disclose his status to the man before unprotected oral and protected anal sex. Law enforcement became involved a few days after the encounter, when the man learned from a mutual acquaintance that Rhoades was positive.

Today’s ruling pushes the case back to the District Court level, where prosecutors will have a final opportunity to prove a factual basis behind Rhoades’ earlier guilty plea. It is unlikely prosecutors will pursue the case further.

EVOLVING LAWS

Only a few weeks ago, Gov. Terry Branstad placed his signature on a bill that effectively erased one of the harshest criminal HIV transmission laws in the nation. It has now been replaced with an infectious disease law, which does not focus solely on HIV/AIDS and includes scientific understanding of how HIV is spread.

Although it has taken more than five years of discussion and education by myself and hundreds of other Iowans — special appreciation to Tami Haught and Community Hepatitis/HIV Advocates of Iowa Network (CHAIN) — our state is now the first to move away from such one-size-fits-all criminalization laws and to a more fair-minded statute.

Such “fair-mindedness” also appears to be in play as part of the majority court decision.

“Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person,” wrote Justice David Wiggins.

For those who have not followed previous cases involving the criminal transmission of HIV, the sentence above sounds years apart from earlier rulings establishing that transmission, although a part of the statute name, was not a requirement of criminal activity.

“In enacting this statue,” the Court determined in an earlier case, “the legislature did not intend ‘could result’ to mean ‘did result.’ Furthermore, ‘could’ is the past tense of ‘can,’ which is defined as ‘[u]sed to indicate a possibility or probability.’ … Thus, for a person to be guilty of violating section 709C.1, it must simply be shown that transmission of the HIV from the infected person to the exposed person was possible considering the circumstances.”

PERSONAL RESPONSIBILITY

While some may view this court decision as well as the changed Iowa law as showing favoritism to individuals infected with HIV or other diseases, it actually results in a balancing of a system that has been significantly tilted against positive people.

Persons exposed now bear at least equal responsibility for their welfare — unless, of course, they were forced into a dangerous situation. Consenting adults should also be communicating adults and informed adults. We are each responsible for our own status and for having a comfortable understanding of our partners’ status.

The criminalization laws, which remain on the books in 30-some states, provided some a false sense of security and served as standing contradictions to ongoing public health messages of shared responsibility.

The way the previous Iowa law was written, only two options existed for someone suspected of the crime:

1) Provide proof of no infection or proof of no knowledge of infection

2) Provide proof of disclosure

While both of these options came with their own pitfalls, the first could be interpreted as an incentive not to get tested. After all, if an infected person was unaware of his or her status, they could not be prosecuted. The latter option can be difficult because such disclosures are often done verbally and in intimate situations. Few people are willing to have their possible sex partner sign a legal waiver, but that was essentially the only foolproof way to prove disclosure had taken place and ensure a jealous or angry partner would not later use HIV status to make a false accusation.

Rhoades deserves to have this conviction set aside, and Iowans living with HIV deserve to have a legal playing field. It’s good to see the Iowa Supreme Court moving in those directions.

l Comments: (319) 339-3144 or @LyndaIowa or lynda.waddington@thegazette.com


Rhoades v. State

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