February 17, 2012
Advocates are fighting back against an Iowa HIV criminalization law that could land anyone found guilty a prison term of up to 25 years and a lifetime label of sex offender.
According to The Daily Iowan, Catherine Hanssens, director of the HIV Center for Law and Policy, "calls the policies underlying most HIV transmission laws 'decades out of date,' and says a much more nuanced approach is needed. 'Most laws treat HIV like it is transmitted with ease,' she said. 'With modern medical knowledge, we understand that this is just not the case.'"
But Iowa requires people living with HIV to inform partners of their status prior to having sex. Failure to disclose is considered a class B felony.
According to Iowa Code 709C, it is a crime if an HIV-positive person "engages in intimate contact with another person," or "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," without disclosing their status first. The code defines "intimate contact" as "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."
In fact, even on HIV meds and with an undetectable viral load, people can be found guilty if they have consensual sex without disclosing their HIV status, as was the case recently for two HIV-positive Iowa residents.
Donald Bogardus, whose next hearing is in early March, faces up to 25 years in prison for not informing his partner that he was positive before they agreed to have sex. Nicholas Rhoades, who also engaged in consensual sex without disclosing his status, used a condom, but was still found guilty and sentenced to 25 years in prison, though WCFCourier.com reported the sentence was reduced to five years probation.
Neither of the accusers in these cases contracted HIV.
But transmission isn't necessary for prosecution, according to the Iowa Code: "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."
Now advocates are pushing for Iowa to revise the Code.
"In Iowa, with support from state public health officials, critics are lobbying the legislature to reword the law so that it requires both intention to transmit and actual transmission. Reformers also want the type of sex act, condom usage and viral load -- a measure of the level of the virus in the system -- taken into account in any decision to prosecute ...
"Changes sought in Iowa's law would dramatically alter patterns of prosecution in the state. They would mean someone like Bogardus -- whose antiretroviral medication essentially deactivates the virus in his body, and who neither transmitted nor sought to transmit the virus -- would not be facing charges that carry penalties comparable to those for second-degree murder.
"Research by the HIV Center for Law and Policy puts Iowa second only to Tennessee in number of prosecutions related to HIV, an especially startling ranking given Iowa's relatively low prevalence of HIV compared to other states."
Furthermore, laws like these assume that individuals living with HIV are the only ones responsible for preventing transmission. The Daily Iowan further reported:
"Sean Strub, an Iowa City native, nationally known HIV/AIDs advocate and founder of the magazine POZ -- standing for HIV positive -- says that even among consenting adults, Iowa's law allows individuals to place responsibility for personal sexual health entirely on a partner.
"He says it is just as important for an HIV negative person to take measures to protect him/herself from getting HIV as it is for a positive person to prevent spreading the virus. In Strub's view, the law undermines the public health goal that all people take responsibility for their own health.
"'It's the arrogance of the well,' he said. 'People who don't have HIV should be just as responsible for not transmitting HIV as the people who aren't healthy.'
Ultimately, whether the laws are revised or not, The Daily Iowan points out "the difficulty of proving that somebody said or didn't say something when courts must rely on assertions about private acts."
Meanwhile, an HIV-positive man in Missouri faces up to 15 years in prison for biting a police officer last June. In Missouri, simply biting a person is considered acting "in a reckless manner by exposing another person to HIV without the knowledge and consent of that person to be exposed to HIV," and is a felony punishable by up to 30 years in prison depending on transmission, according to Missouri Statute 191.677.
Oscar Mairena, senior associate for Viral Hepatitis/Policy and Legislative Affairs at the National Alliance of State and Territorial AIDS Directors (NASTAD), told the Center for HIV Law and Policy, "Persistent misinformation about how HIV is transmitted, and what it means to have HIV in 2012, is a major cause of these laws and can create a major barrier to convincing people that it is safe and necessary to get tested. These cases and these laws are based on stigma, not science, and pose a major threat to our nation's public health."
Warren Tong is the research editor for TheBody.com and TheBodyPRO.com.
Follow Warren on Twitter: @WarrenAtTheBody.