Iowa Supreme Court Reinterprets HIV Exposure Statute to Reflect Current Science

In a triumph for science and common sense, the Iowa Supreme Court has voted in Rhoades v. State, No. 12-0180, to reinterpret that state’s HIV exposure statute to bring it into line with the current scientific evidence about HIV transmission, vacating the conviction of Nick Rhoades, who had originally been sentenced to up to 25 years in prison because he hadn’t disclosed his HIV status to a partner before engaging in sex. The June 13 ruling found that Rhoades received ineffective representation from his defense attorney, who counseled him to plead guilty even though his conduct was very unlikely to have risked transmitting HIV to his sexual partner.

Rhoades was represented on appeal by Lambda Legal and cooperating attorneys from Iowa, who argued that by the time of his trial in 2009, the science had advanced to the point where Rhoades could have argued that it was inappropriate to apply the criminal statute to his case. A dissenting justice argued that this result was unfair to Rhoades’ trial attorney, since his advice at the time was consistent with prior Iowa court decisions upholding convictions on similar facts.

Rhoades was diagnosed HIV-positive in 1998, and began receiving medical treatment in 2005. By the spring of 2008, retroviral therapy had reduced his HIV viral load to the undetectable level. By then, there was an emerging scientific consensus that people with an undetectable viral load were not really contagious.

On June 26, 2008, Rhoades met another gay man on a social network and they got together for sex. Rhoades’s on-line profile listed him as HIV-negative, and they evidently did not discuss the matter before having sex. They had oral sex, without using condoms, and anal sex with condoms. A few days later, Rhoades’s sex partner learned that Rhoades might be HIV-positive and contacted the police. The local prosecutor charged Rhoades with criminal transmission of HIV, in violation of an Iowa statute that applies if a person who knows he is HIV-positive “engages in intimate contact with another person.” The statute 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.” Rhoades subsequently apologized to the sexual partner for not having disclosed his HIV-status.

In cases decided prior to Rhoades’s prosecution, Iowa courts had accepted the generally held view that anybody who was infected with HIV could transmit the virus to another person by exposing them to body fluids. Given the circumstances, it is not surprising that Rhoades’ attorney advised him to plead guilty, hoping that the court would be lenient, and the initial 25 year prison sentence was a shock. Rhoades filed a motion to reconsider the sentence, and the trial judge suspended the 25 year sentence and instead placed Rhoades on probation for five years. Nonetheless, he was left with a criminal record and was listed on the sex offender registry. As he had pled guilty, he did not file a direct appeal of his sentence.

On March 15, 2010, Rhoades applied for post-conviction relief, arguing that his trial attorney was ineffective. In light of the scientific evidence then available, Rhoades argued, the attorney should have had him challenge the factual basis for the charges against him, since a person with an undetectable viral load does not present a risk of transmitting HIV to a partner through oral sex or protected anal sex. The trial court and the Iowa Court of Appeals rejected this argument, but the Supreme Court concluded that it had merit.

Writing for the Court, Justice David Wiggins explained, “In considering the definition of ‘intimate contact,’ we have previously defined ‘could’ in the criminal transmission statute as requiring ‘that transmission of HIV from the infected person to the exposed person was possible considering the circumstances'” in a 2001 ruling. “Although there are multiple definitions of ‘possible,’ we have not previously elaborated on what ‘possible’ means here. First, ‘possible’ may mean something that ‘may or may not occur.’ This definition is broad, and some courts have recognized the word ‘possible’ in certain contexts may mean allowing any likelihood of occurrence, no matter how remote. Second, ‘possible’ may mean ‘having an indicated potential by nature or circumstances,'” citing Webster’s 3rd New International Dictionary. “This definition considers the reality of a thing occurring, rather than a theoretical chance.” He continued that some courts have adopted “an inherent reasonableness consideration in construing the meaning of ‘possible’ in the context of certain statutes.”

“We find the second definition is more appropriate in the context of this criminal statute for at least two reasons,” he continued. “First, we recognize this statute requires expert medical testimony on the likelihood of transmission of HIV. Experts are not required to testify in absolutes when it comes to causation. Second, and more importantly, we would not want to deprive a person of his or her liberty on the basis the defendant’s actions caused something that can only theoretically occur. Causation must be reasonably possible under the facts and circumstances of the case to convict a person of criminal transmission of HIV” under the Iowa statute.

In this case, the court concluded, Rhoades’s attorney “allowed Rhoades to plead guilty when no factual basis existed for the plea and then counsel failed to subsequently file a motion in arrest of judgment.” This is not effective representation. “If trial counsel permits a defendant to plead guilty and waives the defendant’s right to file a motion in arrest of judgment when there is no factual basis to support the defendant’s guilty plea, trial counsel breaches an essential duty,” Wiggins continued. “It is well-settled law that under these circumstances we presume prejudice. At the time of the guilty plea, the record must disclose facts to satisfy all elements of the offense.”

After reviewing the transcript of what was said in court during Rhoades’s guilty plea and scouring the records of his case, the Supreme Court found no evidence to support the charge that Rhoades had engaged in the conduct coming within its current understanding of the statute. Although in the past the Iowa Supreme Court had allowed trial court judges to take “judicial notice” of the “fact” that exposure to an HIV-positive person’s bodily fluids imposed the risk of transmission of a deadly infection, it was no longer willing to allow that practice. “The evidence at the postconviction relief hearing shows there have been great strides in the treatment and the prevention of the spread of HIV from 2003 to 2008. It was not apparent in 2009, at the time of the plea, that this fact was ‘capable of accurate and ready determination by resort to sources whose accuracy’ could not reasonably be questioned,” wrote Wiggins. “Further, while this fact may have been a commonly held belief within the territorial jurisdiction of the trial court, we note the purpose of judicial notice is to show the fact is not subject to reasonable dispute.”

“Here,” continued Wiggins, “we find the fact was subject to reasonable dispute. At the time of the plea, Rhoades’s viral count was nondetectable, and there is a question of whether it was medically true a person with a nondetectable viral load could transmit HIV through contact with the person’s blood, semen or vaginal fluid or whether transmission was merely theoretical. The judicial notice we took in previous cases is subject to reasonable dispute here; thus, it is improper for us to similarly take judicial notice in this case. With the advancements in medicine regarding HIV between 2003 and 2008, we are unable to take judicial notice of the fact that HIV may be transmitted through contact with an infected individuals’ blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus to fill in the gaps to find a factual basis for Rhoades’s guilty plea.”

Under these circumstances, the plea should not have been offered, and “trial counsel was ineffective for allowing the district court to accept the plea without a factual basis.”

Justice Bruce Zager, dissenting, found this analysis unfair to Rhoades’s trial attorney, imposing on him an obligation to anticipate future developments in the face of existing case precedents. “Comparing actual counsel’s performance, given the realities of criminal defense practice, to imagined counsel’s performance under abstract, sterile conditions is not our task,” Zager insisted, criticizing the “distorting effects of hindsight” in evaluating an attorney’s performance. “In a manner not inconsistent with our caselaw, the majority bases its conclusion the guilty plea was not factually supported on the cold record developed at the guilty plea hearing, without regard to other considerations an attorney might have when evaluating a criminal case.” He felt that the court’s analysis “undervalues attorneys’ knowledge, skill, and experience. It also undervalue’s the client’s knowledge and judgment in evaluating the case and making an informed decision about whether to plead guilty.”

Two justices submitted a concurring opinion, pointing out that the court “has an expansive view of ineffective assistance of counsel,” using it “as a substitute for a plain error rule.” Justice Edward Mansfield said that by joining the majority opinion, he was not being critical of trial counsel. “Thus, even as we use the terminology ‘ineffective assistance’ as a tool to review criminal convictions, I think it is especially important that we not appear to be criticizing counsel when we are talking about a legal construct of this court. I join the majority opinion in this case, but I do so without finding fault in the performance of Rhoades’ defense counsel.”

The Supreme Court vacated the court of appeals decision and reversed the judgment of the district court, ordering that court to set aside its sentence of Rhoades. “Because it is possible the State can establish a factual basis, the district court should order the court in the criminal case to give the State the opportunity to establish a factual basis. The district court should further order if the State cannot establish a factual basis, the plea is withdrawn and the State can proceed accordingly.” This would mean the prosecutor would either have to withdraw the charges and drop the prosecution, or proceed to trial, where it would bear the burden of proving beyond a reasonable doubt that Rhoades’s conduct had actually placed his sexual partner at risk of HIV transmission. Under the Supreme Court’s understanding of the science, this would be a difficult burden to meet.

The Iowa legislature recently amended the HIV exposure law to narrow its range of application, by giving a defendant the ability to avoid the highest level of liability by showing they did not intend to expose their sex partner to a risk of HIV infection, and to escape liability entirely by showing through medical testimony that they had an undetectable viral load. Perhaps the legislature will think further about this issue in light of the court’s opinion.

Rhoades was represented on this appeal by Lambda Legal attorneys Chris Clark and Scott Schoettes and local counsel in Des Moines, Joseph C. Glazebrook and Dan L. Johnson of Glazebrook & Moe LLP.

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