Affirming the felony conviction of an HIV-positive gay man for the crime of “criminal transmission of HIV” even though the man did not transmit HIV to his complaining sexual partner, the Iowa Court of Appeals ruled on October 2 in Rhoades v. State of Iowa, NO. 3-57212-0180, that the attorney who represented Nick Rhoades at trial did not provide ineffective legal assistance when he told Rhoades to plead guilty.
Black Hawk County District Judge David F. Staudt at first responded to Rhoades’s guilty plea by sentencing him to 25 years in prison, but then reconsidered the sentence and reduced it to supervised probation for five years. Either way, Rhoades had to register as a sex offender.
Lambda Legal took on his case and appealed it to the Court of Appeals of Iowa. The HIV Law Project, the Alliance of State and Territorial AIDS Directors, and the Center for HIV Law and Policy submitted an amicus brief, explaining why the statute, enacted in the early days of the AIDS epidemic, was based on outmoded factual assumptions about HIV treatment and transmission, but that didn’t sway the court, which suggested that such problems were more appropriately addressed to the state legislature.
According to the opinion by Judge Richard H. Doyle, Rhoades (who knew that he was HIV-positive and is compliant with his medical treatment yielding an undetectable viral load), met the complainant, A.P., in an “online chat room.” After an hour of trading messages, they agreed that Rhoades would come to A.P.’s home, where they chatted, had drinks, and then had sex. First they had oral sex without a condom, then anal sex with a condom. Rhoades was the active partner and claims he never ejaculated. Rhoades did not mention to A.P. that he was HIV-positive.
A.P. claims that he tasted pre-cum during the oral sex and that the condom came off during the anal sex. Rhoades claims that the condom did not come off and, in any event, that he never ejaculated.
A.P., who did not contract HIV infection, later learned that Rhoades was HIV-positive and called the police. The prosecutor charged Rhoades with violating Iowa Code Section 709C.1, which makes it a crime for a person who knows that he is HIV-positive to “engage in intimate contact with another person.” Informed consent is an affirmative defense, so Rhoades would have avoided liability had he disclosed his HIV-status to A.P. before they had sex.
Although the statute is titled “Criminal Transmission of HIV,” the Iowa Supreme Court in prior decisions held that HIV transmission need not occur for the statute to be violated. It is sufficient that an infected person engages in sex that could expose their partner to HIV infection. Judge Doyle’s opinion quotes from prior Iowa Supreme Court rulings upholding and applying the statute in 2006 and 2001, dates that predate current knowledge about the risk of infection from a treatment-compliant person with an undetectable viral load, which is almost zero risk, even without a condom.
In this case, wrote Judge Doyle, the unprotected oral sex was sufficient to justify the conviction. He rejected Rhoades’s argument that that he did not “intentionally expose” his bodily fluid to A.P. Rhoades argued that his use of a condom for anal sex and his care not to ejaculate during oral sex showed that he did not intend to expose A.P. to HIV, but the court found that this argument was precluded by the Iowa Supreme Court’s 2001 ruling, State v. Keene, 629 N.W. 2d 360, where the defendant made a similar argument. In that case the Iowa Supreme Court wrote that “any reasonably intelligent person is aware it is possible to transmit HIV during sexual intercourse, especially when it is unprotected,” so a claim of “non-ejaculation is irrelevant.” Thus, the court can conclude that failing to use a condom for oral sex evinces the intent to expose the other party to the virus.
In light of this approach, the court rejected Rhoades’ contention that his legal counsel at trial was deficient for letting him plead guilty, as the court found that there was “a factual basis” to support the guilty plea. “In view of our conclusion that the unprotected oral sex was sufficient to support a factual basis for the guilty plea,” wrote Judge Doyle, “it is not necessary for us to consider whether the protected anal intercourse would support a factual basis for the plea, nor do we need to address Rhoades’s argument that section 709C.1 should be construed to ‘include an explicit mens rea element.” That is, the court need not decide whether the statute requires the prosecution to prove beyond reasonable doubt that the defendant actually intended to infect his sexual partner, because it would infer that engaging in unprotected oral sex shows the necessary intent to satisfy the requirement of the statute.
Lambda and Rhoades are considering an appeal to the Iowa Supreme Court.