September 12, 2013
On September 11, the Iowa Court of Appeals heard arguments in a case seeking to overturn the 2009 conviction of a man charged with criminal HIV transmission. The case hinged upon an incident in which the man, who knew he had HIV, failed to disclose his status before having protected sex with another man. The new sexual partner also performed an oral sex act on the HIV-infected man, who did not ejaculate at the time. The new sexual partner later reported the incident to the police.
One legal precedent for the case stemmed from the Iowa Supreme Court's 2006 decision to uphold an HIV-infected man's conviction for exposing his partner to semen during oral sex. Christopher Clark, a Lambda Legal senior staff attorney, explained why the Iowa Court of Appeals should not follow this precedent.
Clark stated that both parties agreed the HIV-infected man did not ejaculate during oral sex, and the HIV-infected man's viral load was so low it was undetectable, according to his doctor's tests. CDC has reported reduced risk of HIV transmission through oral sex, and there was no medical consensus on HIV transmission via oral sex without ejaculation.
Iowa's Assistant Attorney General Kevin Cmelik argued that the state's statute aimed to ensure that HIV-infected people disclosed their status to their sexual partners, who then could make an informed decision about the risk of HIV infection from protected or unprotected sex. Cmelik also argued that a 2001 court ruling that an HIV-infected person could be charged with a crime even if ejaculation did not take place during sex provided a legal basis to dismiss the argument that using a condom meant there was no crime.