The seven-member Ohio Supreme Court unanimously rejected a free speech and equal protection challenge to the state’s law making it a felony assault for a person who knows he is HIV-positive to engage in “sexual conduct” with another person without disclosing his HIV-positive status to this sexual partner. State of Ohio v. Batista, 2017-Ohio-8304, 2017 WL 4838768, 2017 Ohio LEXIS 2172 (Oct. 26, 2017). The court divided 4-3, however, on the appropriate legal analysis leading to its conclusion on the 1st Amendment part of the challenge. Upholding an 8-year prison sentence for Orlando Batista, four members of the court ruled that the law regulated conduct rather than speech and that the state had a rational basis for imposing the criminal disclosure requirement for people living with HIV and not for those living with other, comparable, sexually-transmitted diseases, such as Hepatitis C, or engaging in other types of conduct that could transmit HIV.
Batista learned that he was HIV-positive while serving a prison sentence. It appears that he was already infected before being incarcerated, but was unaware of that fact. After his release, he had sex with his girlfriend without disclosing his diagnosis. The opinion for the majority by Justice Terrence O’Donnell does not indicate whether Batista’s girlfriend became or was already infected, or whether Batista’s medical treatment had suppressed the virus to undetectable levels, which would make sexual transmission unlikely.
The statute under which the state convicted Batista states: “No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct.” Batista argued that the statute unconstitutionally compelled people living with HIV to disclose their status, a form of government-compelled speech. He also argued that singling out people living with HIV for this disclosure obligation in connection with sexual activity raised Equal Protection concerns, because people with other, similar infectious conditions were not burdened with this obligation or penalized for not disclosing to their sexual partners, and no disclosure obligation was placed on people engaging in non-sexual activities that could transmit HIV.
On behalf of the majority of the court, Justice O’Donnell wrote, “The First Amendment does not prevent statutes regulating conduct from imposing incidental burdens on speech,” and he argued that in this case, the statute was aimed directly at conduct: actually engaging in sexual conduct without having disclosed one’s HIV-positive status to the sexual partner. He summoned in support decisions by appellate courts in Missouri (State v. S.F., 483 S.W.2d 385 (Mo. 2016)) and Illinois (People v. Russell, 158 Ill.2d 23, 630 N.E.2d 794 (1994)), both of which had rejected the argument that similar HIV-disclosure statutes targeted conduct. The Missouri court had stated in 2016, “While individuals may have to disclose their HIV status if they choose to engage in activities covered by the statute, any speech compelled by it is incidental to its regulation of the targeted conduct and does not constitute a freedom of speech violation.” The Illinois Supreme Court was even more direct, stating that the Illinois statute did not have “the slightest connection with free speech.”
Three members of the court disagreed with this mode of analysis, in a concurring opinion by Justice R. Patrick DeWine. “The statute plainly regulates both conduct and speech,” wrote DeWine, as “one who tests positive for the human immunodeficiency virus (“HIV”) must tell his partner that he is HIV positive before engaging in sex. When the government tells someone what he must say, it is regulating speech.” But this conclusion did not get Batista any closer to victory on his appeal, as DeWine reasoned to the same conclusion as O’Donnell, finding that there was ultimately not a valid free speech claim because the state had met the necessary strict scrutiny test to justify a content-based regulation of speech.
“Under strict scrutiny,” wrote DeWine, “a content-based regulation of speech will be upheld only if it is narrowly tailored to achieve a compelling governmental interest and it is the least restrictive means of doing so.” In this case, he found, there were two government interests. One was preventing the spread of HIV, the other “ensuring informed consent to sexual relations,” noting that society has “long criminalized nonconsensual sexual relations.” He found that the disclosure requirement was justified by both concerns.
While acknowledging testimony by Batista’s expert witnesses that advances in treatment for HIV infection had led to normal lifespans for those infected, rendering HIV infection no longer an “invariably fatal” disease, as it appeared to be when, for example, the Illinois Supreme Court’s decision was announced in 1994, DeWine wrote that the issue today isn’t whether the consequences of being infected are less serious now than they were years ago when the statute was passed. Rather, he wrote, “the question is who gets to evaluate that risk: should the HIV-positive individual get to assess that risk for his sexual partner or should the partner get to make her own decision. Fair to say that most – if not all – people would insist on the right to make that decision for themselves.”
DeWine saw the statute as intended to protect the uninfected as well as to restrain the infected. “Though Batista invokes his right not to be forced to speak,” wrote the judge, “the victim’s rights in this case are at least equally worthy of protection. I would concluded that the interrelated interests of the government that are manifest in the statute – protecting public health and ensuring informed consent – rise to the level of a compelling government interest.”
He also concluded that the obligation imposed by the statute was “narrowly tailored” to advance the government interest, by restricting the disclosure requirement to those who wish to have sex and requiring disclosure only to the partner with whom they wish to have sex. “The only speech that is compelled is speech that is directly necessary for informed consent,” he wrote. “I cannot fathom – and Batista has not advanced – any less restrictive or more narrowly tailored means that could have been employed by the government to achieve its interests here.”
As to the Equal Protection challenge, Justice O’Donnell wrote for a majority of the court that the comparison to Hepatitis C “is misplaced,” that the decision of which public health issues to address in such a statute is a legislative, not a judicial function. “Here,“ he wrote, “the classification is individuals with knowledge of their HIV-positive status who fail to disclose that status to someone prior to engaging in sexual conduct with that person. The valid state interest is curbing HIV transmission to sexual partners who may not be aware of the risk. The statute’s treatment of individuals with knowledge of their HIV-positive status who fail to disclose that status to a sexual partner furthers the state interest here.”
Justice O’Donnell rejected the idea of having the court “weigh the wisdom of the legislature’s policy choices,” claiming that this ”beyond our authority.” In an Equal Protection case, unless there is a suspect classification or fundamental right involved, all the state needs is a rational basis for its actions. Since the majority of the court found no 1st Amendment free speech issue, and knowingly being HIV-positive is not a “suspect classification,” the court’s analysis is no more demanding than to ask whether the legislature had a conceivable basis for singling out HIV-positive people for this disclosure requirement. He found that the lack of similar treatment for those knowingly infected with Hepatitis C “does not eliminate the rational relationship between the classification here – individuals with knowledge of their HIV-positive status who fail to disclose that status to sexual partners — and the goal of curbing HIV transmission.”
Judge O’Donnell also rejected Batista’s argument that the state was irrational in imposing the disclosure obligation in connection with sexual conduct and not in connection with other modes of HIV transmission. “Simply because there are other methods of HIV transmission does not render the classification here without a rational basis,” he wrote, without further explanation.
Responding to the expert testimony on advances in treatment and reductions in the risk of transmission, O’Donnell wrote, “We recognize that there have been advancements in the treatment of individuals with HIV that may have reduced the transmission and mortality rates associated with the disease. However, we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational.”
Judge DeWine, writing for the concurring judges, also rejected Batista’s equal protection argument. Having already concluded that the statute survived strict scrutiny on the First Amendment claim, it followed that it would survive any level of scrutiny on an equal protection analysis as well.
Reading these opinions is frustrating if one has kept up with the latest pronouncements by public health authorities on the efficacy of state-of-the-art HIV treatments to reduce the risk of sexual transmission to a negligible level, but evidently the court was unwilling to entertain seriously the proposition that the state does not have a legitimate interest in imposing the disclosure requirement across the board on HIV positive people, including those who do not pose a real risk of sexual transmission. The likelihood that the court does not fully understand the scientific issues in this case seems high.
Batista was represented by attorneys from the Hamilton County Public Defenders office, but he did not lack exceptional support for his appeal, having drawn amicus brief support from the ACLU of Ohio, the Center for Constitutional Rights, the State Public Defenders office, and half a dozen HIV, LGBTQ and other civil rights and criminal defense advocates, including GLAD, HRC, NCLR, and the Treatment Action Group.
Justice O’Donnell’s opinion for the majority explicitly rejected both state and federal constitutional challenges. It is open to Batista to seek U.S. Supreme Court review on the federal constitutional claims, but the Supreme Court rarely agrees to review decisions that could be premised on independent state constitutional grounds. On the other hand, beyond passing mention of the state constitution, both the majority and concurring opinions focused on federal constitutional doctrines and precedents, and it is open to argue that federal constitutional protection for speech and equality is more protective of individual rights than the relevant state laws, which would provide a basis for the Supreme Court to take up the issue.
Tags: criminal penalty for failure to disclose HIV+ status, HIV disclosure, HIV transmission, informed consent for sex, Justice R. Patrick DeWine, Justice Terrence O'Donnell, Ohio Supreme Court, Orlando Batista, State of Ohio v Batista