Alex Blaze

HIV disclosure laws strike again

Filed By Alex Blaze | May 11, 2009 9:30 AM | comments

Filed in: Living
Tags: Bradley Harris, HIV/AIDS, iowa, judge, LGBT, negative, Nick Clayton Rhoades, positive

One of the arguments people who support HIV disclosure laws generally make in their defense of such legislation is to think about the "victim" - the person who consensually had unprotected sex with someone whose serostatus they didn't know, but apparently isn't responsible for his or her actions. Here's a case that shows that those laws don't even require the transmission of HIV to punish someone with 25 years in prison for not disclosing his status:

Rhoades, 34, pleaded guilty to failing to disclose his HIV status prior to having sex with a Cedar Falls man June 26. The two men exchanged messages in an Internet chat room before meeting at the victim's home. Although the contact was consensual, the victim, who has since tested negative for HIV, said Rhoades denied he had any sexually transmitted infections. The charge against Rhoades stands because he failed to disclose his HIV status prior to having sex with the man.[...]

Rhoades said he doesn't remember discussing his HIV status with the victim. He drank heavily and took prescription pills before having sex, a combination that he said clouded his judgment. In addition to HIV, the defendant also was being treated for herpes and genital human papillomavirus at the time of the incident, said assistant county attorney Linda Fangman.

There you have it. The other person says that you didn't disclose, you say you don't remember, and you go to prison for 25 years. Thank God no sex goes on in prison, since we'll finally be able to keep this monster who didn't transmit HIV to someone else under control.

This case demonstrates some of the ridiculousness behind these laws. Get a load of what the judge who sentenced Rhoades to 25 years said:

"Simply because it happens regularly that people don't disclose, doesn't mean it's safe," Harris said. Despite improved treatments, he told Rhoades, contracting human immunodeficiency virus "does change your life, and you more than anyone else should know that."[...]

"One thing that makes this case difficult is that you don't look dangerous; you don't look like most of our criminals that sit here," Harris said. "But the risk is still there, just like if you would have shot a gun."

Just like shooting a gun? Really? I know that in order to push conservative laws we all have to live in a constant state of fear of the hobgoblin-du-jour, but can we bring the rhetoric back down to Earth, judge?

Because the chance of someone who's positive spreading HIV to someone who's neg, if the poz guy is the top and they don't use a condom, is 1 in 50. The chance of killing someone by shooting a gun, though, I'd imagine is much greater.

(And that's assuming that they engaged in the most risky sex they could have. The articles I've found on this haven't specified if they engaged in anal sex, if they did or did not use a condom, or who topped. That's a lot of ifs, and, as others have pointed out before, lots of cases involving HIV nondisclosure laws don't ask that many questions.)

I sincerely doubt these laws make anyone safer. I've yet to see any research supporting the idea that they do, and the preponderance of evidence would seem to be on the side of making people much, much less safe, since all they do is perpetuate the myth of "I'm sure he'd tell me if he had it." Plus prison significantly reduces the lifespan of people put into it for long periods of time, and I'd imagine its life-shortening effects would be amplified for people with HIV.

But this is America, and as the country with 5% of the world's population and 25% of the world's prison population, we obviously don't care all that much about having a good reason to put someone in prison. It makes some people feel safer, and that's reason enough to ruin someone else's life.

Because that's the irony in the judge's comments - aiding someone else in exposing himself to a 2% chance of HIV transmission and the life change that comes with that is enough to give someone a 100% chance of having his life ruined.

I know that I'm in the minority on this one, since even in the LGBTQ community the idea that throwing people in prison will solve all our problems has a lot of traction. So I pose the following questions to those people:

  1. John Doe, the "victim" in this case, said that his "right to choose whether to be intimate with someone who was HIV positive" was violated in this case. Is 25 years jail time, lifetime parole, registering as a sex offender, and monetary restitution too harsh, too light, or just right for violating John Doe's right to not have sex with people who are HIV-positive (or, more accurately, his right to bareback with people who are HIV-negative)?
  2. Does John Doe bear any responsibility here for having unprotected sex with someone whose status he didn't know? Rhoades said he was "clean" online, but anyone familiar with internet cruising would know how much weight to place on that.
  3. Will John Doe and other HIV-negative gay men who hear about this case be less likely or more likely to have unprotected sex with online tricks in the future?
  4. Does putting an HIV-positive person in prison, where condoms aren't distributed and male-on-male sex is rampant, unduly put others at risk? If the "victim" in this case were someone else in a prison, would Rhoades have received 25 years?
  5. Should Rhoades's lack of intention to infect John Doe be a mitigating factor in this case? Should the fact that he didn't infect John Doe be a mitigating factor in this case?
  6. If Rhoades had heard of other poz people being imprisoned for nondisclosure, would that have changed his actions in this case?

Thanks to Dale for emailing me this article.


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christophe | May 11, 2009 10:27 AM

This is very scary, it could cause people to easily start abusing the justice system. It also is going to make people NOT get tested and ultimately create more harm.

I'm also wondering about question #5. There are lots of things that are illegal where someone doesn't intend to do others harm and where that person doesn't do others harm, like speeding, but where they can still be punished.

Then again, speeding results in a small fine on the first offense, not 25 years in prison and lifetime parole along with being a registered sex offender.

christophe | May 11, 2009 11:30 AM

Ultimately this could very easily extend to being able to criminalize anyone who has sex and passes on a STD

holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck holy fuck

i can't believe this. i can't believe this.

A. J. Lopp | May 11, 2009 3:03 PM

When adjudicated humanely, these laws make a fair bit of sense. In instances such as the one you cite, it is clear that some judges will use them to create an opportunity to effectively make being HIV-positive a crime in itself. So the problem is as much prejudicial judges as it is "bad" law.

As I have commented before, the situation is even worse if we are talking about a sex worker who is HIV-positive. Under law in many states, such a person is presumed to engage in unprotected sex without disclosure, whether they do in actuality or not, even if a partner testifies that disclosure was given and protection was used (after all, how can the court tell, since obviously either such person will be willing to lie), and thus the sex worker can be charged automatically with attempted murder.

Injustices and tyrannies in this area of the law abound, and even the most well-intentioned among us would find it difficult to establish rules that are just in all cases.

I wrote about another case around a year ago. I agree with Alex that those who leap into sex with people whose status they don't know should bear some responsibility here. On the other hand, I am unable to boo-hoo over those individuals who knowingly infect others, whether it's HIV or some other STD. They're the public-health version of people who drive while drunk. Looking at them this way, instead of comparing them to speeders, makes the issues clearer.

There was the time when our society was a lot more tolerant of drunk drivers. Today drunk drivers don't get any sympathy. It's true that drunk drivers don't always have accidents and hurt or kill others, but the fact that they CAN and DO hurt or kill others is considered a good reason to prosecute them for the mere fact of driving drunk, whether they killed anybody or not.
Maybe a drunk driver didn't "intend" to kill anyone -- but he or she had to know, when they started drinking, that they were getting themselves into a state where they COULD kill someone. Hence the way that "reckless endangerment" comes into play, even in cases where transmission didn't actually occur.

It's definitely true that the U.S. penal system is having to deal with out-of-control transmission of diseas behind bars. Check out this resource on recent state and federal legislation on HIV testing in prison
http://www.ncsl.org/programs/pubs/lbriefs/LEGIS935.htm

Twenty-two states now require HIV testing of inmates. Segregating the positives is considered an issue, because it outs their HIV status to the rest of the prison population. Nevertheless some prisons do keep the positive cases in a separate tank.

The latest trend is to test inmates just before release. This way, anybody who seroconverts in prison is on notice about their status when he or she returns to the community outside.

I agree that drunk driving is the most apt comparison here. In the state of Iowa, the maximum punishment for the first offense of drunk driving is 6 months jail time.

http://www.duiiowa.com/faqs.cfm

No registry as a sex offender, no lifetime probation, and a sentence that's 24 and a half years shorter.

If the two are comparable, then the state of Iowa should consider making the punishments comparable as well.

I agree that the US penal system hasn't dealt with STD transmission. And, until it does, it seems like an awful idea to send known seropositive people into prison just for the fact that they exposed someone else to the virus in the outside world. As I asked above, if the "victim" were someone else in prison, would Rhoades have even been prosecuted?

I should point out that it's different from drunk driving in that people can have a reasonable expectation that others on the road won't be drunk and that there's little sober people can do to defend themselves from a drunk driver. But they don't have the right to assume that the person they just met online is neg so they can go bareback (if that's what these folks did).

Alex, you fail to take into account injury with this punishable crime. That 6 months doesn't include injuring someone or even killing them.

I think that makes it more comparable, since Doe didn't get HIV in this case.

This way, anybody who seroconverts in prison is on notice about their status when he or she returns to the community outside.

Great!

Because if they don't know that they're positive then how can we throw them back in prison for 25 years after they fail to navigate the difficult complexities of safe-sex 100% perfectly every time given nothing but an abstinence-only education?

Clearly we wouldn't be able to, and that would be the real tragedy.

Alex Grigny Alex Grigny | May 12, 2009 6:19 AM

What about John Doe's responsibility in this affair? He willingly ignored safe sex precautions, exposing himself and other partners to STDs ("he told me he was clean" is no excuse, as we all know). There was no rape or coercion, and in my opinion JD is just as guilty and (ir)responsible as Rhoades. And he's free to repeat his barebacking habits with anyone who claims to be "clean"... weird world!

Alex,

I have 1 question. Is there anything that can be done to help this guy? Lambda? Write the judge? Anything? This case is so crazy.

If someone sweats on the gym equipment and Sally comes over naked and slips her private parts on it. Should we prosecute that person for sweating?

Just as stupid as this case.

HELP!

I too would like to know if there is a group that is fighting this sort of legislation. I would think that the vast differences in State Law (such as California vs Florida) would be reason enough for an eventual Supreme Court ruling. Where is the lifetime punishment for Hepatitis?

Robert Wayne | August 31, 2010 11:44 PM

What about a couple that take the time to engage in a relationship and one partner requests testing of the other to ensure that they are both neg before ingaging in unprotected sex(after months of dating)only to learn that the one doing the requesting was decieving his partner by claiming to be neg when in fact he has been poz for 10 years and concealing it.At what point can someone be held accountable for deceipt let alone non disclosure. I dont want to see an all out witch hunt for people with HIV and i certainly dont want to see people with HIV prosecuted for what should be everyones personal accountability, however when a person with HIV purposefully lies in order to persuade or convince someone that they are negative, i think thats an entirely different story.

John Example | March 22, 2011 3:45 PM

This is truly scary, as highlighted by everyone's comments. One additional area to consider, is that of the person who is positive, and wanting to come out in full force for whatever reason. Living in smaller communities, the gossip mill could carry this message to former partners to which he may not have disclosed. Or, if after a drunken night of passion and poor choices by both parties, the positive person would like to inform the partner that they are positive. This seems like a responsible action, so the other person can take appropriate precautions get tested, start PEP etc...but fear of incarceration would prevent the person from disclosing the next day. Is there a statute of limitations? Would the person have to prove that they hadn't had unprotected sex with anyone since the encounter? or before for that matter.