February 5, 2013

Big push in Iowa to decriminalize failure to tell intimate partner about HIV infection

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Advocates calling for an end to Iowa’s law that makes failure to reveal an HIV infection to an intimate partner are making a big push in Iowa this week to lobby state legislators to change the law.

State Sen. Matt McCoy (D-Des Moines), who filed a bill in this General Assembly that decriminalizes failure to disclose and calls for other reforms in Iowa’s HIV notification law, said that Thursday, Feb. 7, is a particularly important day for the bill. That is when supporters will make their biggest push in Des Moines.

Sen. Matt McCoy (D-Des Moines)

Sen. Matt McCoy (D-Des Moines)

“We’re hoping it’ll be a great time to educate a lot of legislators on why we need to reform the HIV criminalization statute, and why we need to bring HIV in line with other communicable diseases,” McCoy said.

Many of those heading to Des Moines from across the state and nation planned to be there all week.

On Tuesday, the Sero Project, a Pennsylvania-based organization dedicated to reforming HIV legislation in the United States, held a reception at the Davis Brown Law Firm in Des Moines. For Thursday, dubbed “lobby day” by those pushing for McCoy’s bill, the Community HIV & Hepatitis Advocates of Iowa Network (CHAIN) scheduled a legislative luncheon; 40 people had signed up for that as of Monday afternoon.

Current law makes it a felony if a person with HIV (human immunodeficiency virus) does not disclose this status to a sexual partner. It carries a 25-year prison sentence and life on Iowa’s sex offender registry.

The law is intended to promote public health by preventing the spread of HIV. However, officials and experts have voiced concerns that it does exactly the opposite, by discouraging testing and further stigmatizing HIV. Not knowing you have HIV absolves you of breaking the law.

“You’re balancing punishing people who don’t lead to transmission against discouraging testing,” Dr. Jack Stapleton, professor and director of the University of Iowa HIV Program, at the Helen C. Levitt Center for Viral Pathogenesis and Disease. “I think encouraging testing is more important.”

McCoy said changes in the law that he proposes would take into account an individual’s actual medical likelihood of transmitting HIV and whether the virus was actually transmitted.

He said the changes reflect current science and best practices related to HIV exposure and transmission. For instance, a person receiving medical treatment for HIV can have a far lower chance – almost no risk – of sexually transmitting the virus.

“I believe that once lawmakers become informed about HIV transmission and exposure laws, they will realize how archaic and outdated Iowa’s laws are, and act to modernize and conform with other contagious diseases,” McCoy said.

McCoy’s previous attempts to rewrite the law have stalled at the Legislature. To combat this, advocates say they want to highlight for legislators medical advances they say make Iowa’s HIV law outdated.

What the statute means

The current law mandates disclosure of a positive HIV status before intimate contact, which is identified 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.”

Failing to disclose is a class B felony, regardless of whether protection was used, or whether the virus was transmitted. To be prosecuted, the person with HIV need not have intended to transmit the virus. The law only deals with whether the person intended to have intimate contact.

A person who transmits the virus, but who does not know his or her HIV status, cannot be prosecuted under this statute.

Once a person has been charged with criminal HIV transmission, he or she can be sentenced to the 25-year prison term that exists for all class B felonies, such second-degree sexual assault or vehicular homicide while intoxicated.

As a member of the sex offender registry, the convicted person must continue to report in person to the local sheriff’s office for the rest of his or her life, with frequencies ranging from every three months to one a year. Being unsupervised with any child can lead to that child’s parent in Iowa being charged with child endangerment.

The Iowa Code in action

Iowa’s law passed in 1998, after the Ryan White CARE Act mandated that states create laws for intentional HIV transmission in order to receive AIDS treatment and prevention funding. Thirty-three states and two U.S. territories have HIV transmission laws, as does the federal government, according Centers for Disease Control and Prevention.

Iowa’s penalty far exceeds that of other states. A previous IowaWatch report gave examples: Illinois’ similar law carries a maximum seven-year sentence; California’s maximum is eight years.

One well-known case of criminal HIV prosecution is that of Nick Rhoades, an Iowa man with HIV who was prosecuted in Black Hawk County for not disclosing his status to a sexual partner in 2008, despite wearing a condom and being treated for HIV.

Nick Rhoades

Nick Rhoades

Rhoades did not infect his partner, but pleaded guilty on the advice of his attorney and received the maximum 25-year prison sentence. The court later suspended Rhoades’ imprisonment sentence and released him to five years of supervised probation, but his sex offender status for life remains unchanged.

Rhoades is appealing to the Iowa Supreme Court. Joseph Glazebrook, from the Glazebrook & Moe law firm in Des Moines and a defense co-counsel in Rhoades’ case, called Iowa’s law draconian.

Joseph Glazebrook

Joseph Glazebrook

“From a purely legal standpoint, my best advice to avoid knowing your status, because that is the only surefire way to avoid being prosecuted for a class B felony in this state,” Glazebrook said.  “Obviously, this legal advice conflicts with the best medical advice one could receive, and so that tension creates a lot of problems.”

If the law were to be rescinded, Glazebrook said, several ways still would exist for holding a person legally culpable for not disclosing an HIV status and infecting another person. For instance, Iowa’s public health code contains a more generalized, low-level criminal offense for people who intentionally transmit communicable diseases.

History and medical advances

Experts who support changing Iowa’s law say it is based on outdated medical knowledge. A few months of successful antiretroviral therapy can lower the rate of transmission to almost zero, Stapleton said.

Dr.Jack Stapleton

Dr. Jack Stapleton

Antiretroviral therapy works by lowering the number of copies of a virus in the bloodstream, Stapleton said. Beginning the treatment, an HIV-positive individual might have about 50,000 copies of the virus per cubic centimeter in the bloodstream. After about three months of treatment that number typically drops below 48.

This means the virus’ level in the bloodstream is so low a modern medical test for HIV could not detect the virus.

The chance of transmission through sex cannot be precisely calculated, Stapleton said. Untreated HIV during casual, unprotected intercourse can run a risk as high as one in 900 in some countries, but for an individual on antiretroviral therapy, the risk would be well below that number.

Stapleton described that particular risk simply as “not zero”. He said medical professionals encourage condoms and safe practices for all, regardless of status. He said he advises people with HIV to document their disclosure to a new sexual partner.

He supports rescinding the criminalization statute, he said, because it discourages testing and, thus, prevents people from receiving treatment.

How this affects HIV testing in Iowa

Sean Strub, executive director of the Sero Project, is an Iowa City native who fights criminalization statutes nationwide. Strub said these laws may have been well-intentioned, but have gone far astray from their original goal.

A person who never has been tested for HIV is far more likely to be infectious and transmit the virus sexually, but this danger is not addressed in the law, Strub said. Because of this, Strub said, people who have had unprotected sex are more likely to remain ignorant of their status.

Strub also said the law supports the idea that during a sexual encounter between two people, only one person needs to be held accountable for talking about safe. “Obligation for preventing HIV sexual transmission is shared,” he said.

For these reasons, Strub said he believes a law directed toward people with HIV is discriminatory. “Most people think it’s not a good idea to create different laws for people based on their gender, race, sexual orientation, or genetic makeup,” he said. “Here, it’s based on viral makeup.”

Stigma and responsibility regarding HIV

Strub has been living with HIV for more than 20 years – his entire adult life. He said he learned his status in the 1980s, when HIV testing first was available.

Sean Strub

Sean Strub

Strub, now living Pennsylvania, said he recognizes the stigma of HIV every day. He has encountered people who refuse to shake his hand or eat food he has prepared in the restaurant he owns. He has been turned down for a bank loan, and was told later it was because he had HIV, he said.

Both Strub and Stapleton said discussing with a sex partner the risk of sexually transmitting infections is essential. But while not having that discussion may be irresponsible for any sexually active person, it should not be a criminal offense, Strub said.

“I think we have to separate criminal liability from ethical and moral issues,” Strub said. “I don’t think any person should knowingly put another person at harm. Whether it’s criminal or not, it’s wrong.”

Possible reform

Under McCoy’s proposed changes, an individual with HIV who did not disclose this status before unprotected sex still could be charged. If HIV were transmitted through unprotected sex, the charge would remain a class B felony. Without transmission, it would be an aggravated misdemeanor.

Reform measures could affect ongoing HIV criminal transmission cases. While Rhoades’ is on its way to the Iowa Supreme Court, another Iowan, Donald Bogardus, awaits trial for failing to disclose his HIV status to a partner who did not contract the virus.

 

IOWA CODE SECTION 709C:
The wording of Iowa Code Section 709C vs. Proposed Changes:

Current: Section 709C: Criminal Transmission of Human Immunodeficiency Virus Proposed Changes: Section 709C: Criminal Transmission or Attempted Transmission of the Human Immunodeficiency Virus

Current: 1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:
Proposed Changes: 1. A person commits criminal or attempted criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:

Current: 1a. Engages in intimate contact with another person.
Proposed changes: 1a. Engages in unprotected intimate contact with another person.
Proposed changes: Add: 2a. “Another person” means a person who does not know the infected person’s human immunodeficiency virus status is positive at the time of the exposure, does not know the action of exposure could result in the transmission of the human immunodeficiency virus, or, with the knowledge of the infected person has positive human immunodeficiency virus status, does not consent to the action of exposure.

Current: 2b. “Intimate contact” means 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.
Proposed changes: 2e. “Unprotected intimate contact” means intimate contact that does not involve the use of a condom or similar device.

Current: 3. Criminal transmission of the human immunodeficiency virus is a class B felony.
Proposed changes: 3a. Criminal transmission of the human immunodeficiency virus is a class B felony if an infection with the human immunodeficiency virus occurred.
3b. Attempted criminal transmission of the human immunodeficiency virus is an aggravated misdemeanor if no infection with the human immunodeficiency virus occurred.

Current: 4. 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.
Proposed changes: Remove the above.

Current: It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.
Proposed changes: Remove the above.

 

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  1. Pingback: Possible changes to HIV criminalization statute | Nora Heaton

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