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Mass. High Court Gives OK to Non-Governmental Needle Exchange Programs

Posted on: June 14th, 2017 by Art Leonard No Comments

Giving a very close reading to Massachusetts statutes regulating the sale of hypodermic needles and authorizing the Public Health Department to set up needle exchange programs, the Massachusetts Supreme Judicial Court unanimously ruled on June 14 that there was no legal impediment to a private, non-profit group setting up a free needle-exchange program without the specific approval of local government authorities. The ruling came in response to an attempt by the Town of Barnstable to shut down a free needle exchange program in Hyannis, on Cape Cod, started by the AIDS Support Group of Cape Cod, referred to throughout Justice Barbara Lenk’s opinion for the Court as ASGCC.  AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, SJC-12224, 2017 Mass. LEXIS 391 (June 14, 2017).

ASGCC started its “free hypodermic needle access program” in 2009, which it has been operating in Hyannis, Provincetown, and Falmouth. The program is intended to help reduce the spread of HIV and hepatitis C by making sure that injectable drug users have clean needles and no need to share used needles.  ASGCC made no attempt to get approval for their program by the local town government, probably anticipating that it would be controversial and likely denied.

According to Justice Lenk’s opinion, “ASGCC seeks to ensure that its clients use a clean needle every time they inject opiates or other drugs. ASGCC therefore conducts an initial assessment of each person who requests needles or other services and provides only as many needles as staff believe will be necessary so that the client will be able to use a clean needle for each injection.  ASGCC provides a collection receptacle for the return of used needles at its facility, encourages clients to return needles, and gives each client an individual ‘sharps container’ for storing used needles before they are returned, but does not require a return of the same number of needles distributed in order to provide additional needles.”

ASGCC also provide other free services such as medical case management, peer support groups, housing, nutritional programs, testing for HIV and other blood-borne conditions, and risk reduction strategies.

The current lawsuit got under way when town authorities claim to have discovered “improperly discarded hypodermic needles in public places” and determined that some of them came from ASGCC’s distribution activities. The town police hand-delivered a “warning” letter to ASGCC’s facility on September 22, 2015, and the town’s director of public health mailed a “cease and desist” order on September 23, 2015, threatening action against ASGCC if it continued to distribute needles.

ASGCC obtained assistance from GLBTQ Legal Advocates & Defenders (GLAD), a Boston-based public interest law firm, which filed suit on their behalf in the Massachusetts Superior Court. GLAD attorney Bennett Klein argued that the town’s order was not authorized by law and sought an injunction against enforcement of the town’s cease and desist order.  Superior Court Judge Raymond P. Veary, Jr., issued a preliminary injunction and the case was certified for a quick appeal, eventually bypassing the Appeals Court and going directly to the Supreme Judicial Court due to the urgency of resolving the issue.

Massachusetts, like many other states, outlawed the sale, distribution and private possession of hypodermic needles except for those sold by licensed pharmacists to fill a prescription by a licensed physician. However, in 2006, in response to intense lobbying by HIV prevention groups and public health officials, the legislature amended the statute to regulate only sales, removing criminal penalties for possession, and authorizing the Department of Public Health to operate non-sale needle exchange programs with local approval.

In defending against ASGCC’s lawsuit, the town argued that under the statute needles can only be legally obtained in Massachusetts either from a licensed pharmacist filling a prescription or from the needle exchange program operated by the Department of Public Health with local government approval.

The Court agreed with GLAD’s argument that this is not what the statutes provide. For one thing, the criminal penalties for sale by anyone other than a licensed pharmacist do not logically apply to ASGCC’s programs, because they are not selling the needles.  They distribute them for free to those who qualify to participate in the program.  Furthermore, the only free needle distribution programs that require local government approval under the statute are those operated by the state Department of Public Health.

“The statutory language is clear that programs such as ASGCC’s are not prohibited,” wrote Justice Lenk, “the legislative history does not evidence an intent to the contrary, and interpreting the two statutes to allow private entities to operate non-sale needle exchange programs does not give rise to an absurd result,” contrary to the town’s arguments.

On the contrary, what the Court would consider to be “absurd” was the town’s argument that the statutes restricting sale of hypodermic needles apply to ASGCC’s free-distribution program, or that by authorizing the Department of Public Health to set up needle exchange programs, the legislature was somehow, without saying so, making those programs the only venue for free distribution of needles. Indeed, one could argue that by decriminalizing private possession of needles and restricting sales to licensed pharmacists, the legislature was leaving unregulated the free distribution of needles.  But the Court did not have to go that far, merely to find that there was no applicable statutory restriction that would support the town’s cease and desist order.

The town argued that the legislature had “anointed” the pharmacists as the “gatekeepers” of “sale and distribution” of hypodermic needles. But the statute does not forbid non-sale distribution by those who are not pharmacists. The town pointed to failed legislative proposals that would have specifically allowed non-profit groups like ASGCC to distribute needles, and argued that the legislature’s intent to ban such programs could be inferred from the failure to pass such bills.  The Court refused to go down the road of reading an affirmative legislative prohibition into the failure of the body to pass a bill.

The possibility that an adverse ruling in this case could spell the end of free needle distribution programs in Massachusetts drew wide attention to the case. The Court receiving a joint amicus brief from a wide array of HIV, LGBT, and professional public health organizations arguing against the town’s position.  Despite evidence that needle exchange programs administered by non-governmental community based groups have been effective at reducing the rate of HIV transmission through shared hypodermic paraphernalia, such programs are still controversial in many parts of the country.  Although the Court’s opinion did not explicitly review policy arguments supporting such programs, the opinion may add support to efforts elsewhere to establish such programs where they don’t presently exist.


Florida Supreme Court Confronts Definition of “Sexual Intercourse”

Posted on: March 17th, 2017 by Art Leonard No Comments

In Debaun v. State, 2017 Fla. LEXIS 583, 2017 WL 1024526 (March 16), the Florida Supreme Court resolved a conflict between the intermediate appellate courts of the state about how to define “sexual intercourse” for purposes of a statute that makes it a crime for a person who knows he is HIV-positive to fail to disclose that fact before engaging in “sexual intercourse” with another person. Surprisingly, the 2nd District Court of Appeals had ruled in 2011 that the statute applied only to acts of penile-vaginal intercourse and not to cases of sex between gay men.  The 3rd and 5th District Courts of Appeals ruled that gay sex was covered by the statute.  The Court granted review in the 3rd District case to resolve the dispute.

The problem arose from the legislature’s failure to define the term “sexual intercourse” in the statute, presumably because the legislators assumed everybody would know what they meant. In 2011, the legislature decided to update the state’s sex crimes law by replacing the old “Venereal Diseases Act,” which explicitly applied only to sex between a man and a woman, with a new law titled “Control of Sexually Transmissible Disease Act.”   Both of these statutes used the term “sexual intercourse,” but the later statute removed the earlier statute’s explicit application only to mixed-sex couples.

In an early case decided under the new law, the 2nd District court confronted a motion by a gay man to rule that the statute did not apply to him.  Looking for a statutory definition of “sexual intercourse” elsewhere in the Florida penal laws, the court found the incest statute, which defines “sexual intercourse” as “the penetration of the female sex organ by the male sex organ.”  That court concluded that when the legislature defines a phrase in one sex crimes statute, it is appropriate to use that definition in other sex crimes statutes.  Thus, it concluded – rather nonsensically, given the context – that the legislature’s use of the phrase “sexual intercourse” in the sexually-transmitted disease statute “is clearly and unambiguously limited to heterosexual penile-vaginal intercourse,” so the statute did not apply to that gay defendant’s case.

Gary Debaun’s charged violation was particularly egregious. His prospective sex partner had asked him for proof that he was not infected with HIV, and he responded by forging his doctor’s name on a lab test form to certify that he had tested negative for the virus.  He knew he was positive, but did not want to disclose that fact.  Somehow his partner later discovered after having sex with him that Debaun was positive and reported the crime, helping police detectives obtain an admission from Debaun during a “controlled phone call.”

Debaun moved to dismiss resulting the felony charge by citing the 2nd District Court of Appeals ruling.  At the time, this was the only Florida appellate ruling on point, and the trial judge followed it, granting the motion.  The state appealed, and the 3rd District reversed, resorting to dictionary definitions of “sexual intercourse,” which go beyond the traditional heterosexual definition.  The 3rd District also relied on the legislative history of the statute.  If the legislature’s intention was to deter and punish conduct that could spread HIV, it would not make sense to limit the law’s application to heterosexual intercourse.  The 3rd District court concluded that the legislature clearly intended to adopt the broader interpretation.  Debaun appealed this ruling to the Supreme Court.

While Debaun’s appeal was pending, the 5th District Court of Appeals had occasion to rule in a similar case, also reversing a trial court’s dismissal of charges against a gay man, where the trial court had relied on the 2nd District ruling.  That case didn’t get up to the Supreme Court because the defendant did not file a timely notice of appeal.

The Supreme Court, ruling unanimously, agreed with the 3rd District’s approach.  Where the legislature does not spell out the meaning of a term it uses in a statute, Justice Charles Canady wrote for the court, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.”  The first place to look for plain meaning, said the court, is the dictionary.

Justice Canady quoted from Webster’s Third New International Dictionary, the American Heritage Dictionary, and Merriam-Webster’s Collegiate Dictionary, all of which define the term to apply more broadly to genital sex acts beyond penile-vaginal intercourse. The court found this broader definition consistent with the legislative intent, in which preventing HIV transmission was the particular spur to replacing the old law with the new one.  Citing statistics from the federal Centers for Disease Control and Prevention website, the court noted that gay and bisexual men “accounted for the majority (67%) of new HIV infections” in 2014, and as of 2013 made up a majority of the people living with HIV infection in the United States.

Thus, adopting the broader interpretation produces a reasonable result, as it “gives full effect to the Legislature’s intent to reduce the incidence of HIV.”

Furthermore, looking to other statutory provisions as a guide to meaning is inappropriate unless “the provision to which a court looks” is “related to the provision lacking a definition.” The court found that the incest provision relied upon by the 2nd District is not so related.  The legislative concern there is with “the prevention of pregnancies which may involve a high risk of abnormal or defective offspring” when the man and the woman are closely related to each other.  That policy concern is not present when both parties to the sexual act are men or are women.

The court also found that the 2nd District had neglected to look at some more recent Florida cases that had defined “sexual intercourse” to apply to two males in other contexts.  And the court rejected application of the “rule of lenity” by which criminal statutes are strictly construed, finding that “the term ‘sexual intercourse’ is commonly understood to broadly refer to various sexual acts – including the sexual act at issue here.  In certain contexts, the term refers specifically – that is, more narrowly – to penile-vaginal intercourse.  But in the context of [the sexually transmitted disease statute], ‘sexual intercourse’ unambiguously denotes sexual conduct that includes acts of oral and anal intercourse,” wrote Justice Canady.


A Voice of Reason on HIV and Blood Donation – From Ireland

Posted on: October 15th, 2013 by Art Leonard No Comments

In the United States, men who have had sex with men (even once) since 1977 are permanently disqualified from donating blood.  This rule, adopting by the Food and Drug Administration (FDA) in the mid-1980s shortly after epidemiological studies had demonstrated that whatever was causing AIDS was probably a blood-borne pathogen, but also shortly before the particular viral vector had been shown and well before there was detailed information about how it was transmitted and what the risk of transmission was, has persisted, even though scientific evidence was mounting that it was unnecessarily imposing a categorical stigma on a segment of the population that was unwarranted by public health concerns.

Even though the vote was close, the most recent consideration of this issue by those empowered in the United States to recommend and make blood donation policy has failed to change the rule.  In other countries where these decisions are grounded more firmly in science and less in politics, changes have been made.  In Canada and Great Britain, the lifetime deferral policy has been abandoned and instead men who have had sex with men are placed in the same category as others whose sexual activities and behavior may subject them to heightened risk of contracting HIV and being able to transmit it through blood donations: such individuals may not donate blood within one year of their last risky behavior in England, Scotland and Wales, while Canada has adopted a five-year rule with some indication that it may be reconsidered in light of what the UK has done.  (Debate continues about how to define risky behavior for this purpose.  Should it include unprotected oral sex?  Should it include anal sex with condoms?)

In the U.K., an Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) recommended a one-year deferral rule, which was promptly adopted by the Health Ministers in England, Wales and Scotland.  But the Health Minister for Northern Ireland, one Edwin Poots, dithered and punted and indicated that he needed more information.  This was in the late fall of 2011.  After the lifetime deferral policy was lifted elsewhere in the U.K., an Irish resident who would have been disqualified under the new rule but who had experienced a religious conversion and had abandoned a “gay lifestyle” was angered that he would be subjected to a lifetime deferral rule and brought suit anonymously in the High Court of Justice in Northern Ireland, contending that the refusal of the Health Minister to adopt the new one year deferral rule recommended by the Advisory Committee was legally improper due to its irrationality in light of the scientific evidence, findings and recommendations of the SaBTO Report.  He also maintained that it was motivated by anti-gay bias, in violation of the European Convention on Human Rights.

On October 11,2013,  Mr. Justice Seamus Treacy stated his agreement with the anonymous applicant in Matter of an Application by JR65 for Judicial Review, [2013] NIQB 101, finding the Northern Ireland Health Minister’s decision to leave the lifetime deferral policy intact to be irrational and beyond his authority to do on a unilateral basis.  The applicant had suggested anti-gay animus, due to the Health Minister’s political affiliations, but Justice Treacy did not have to go there to reach his conclusions.  Having found that the Minister’s failure to adopt the SaBTO’s recommendations constituted a decision which could be challenged under judicial review, Justice Treacy reasoned that it was not totally irrational for the Health Minister to consider that men who had sex with men presented a higher risk of HIV transmission, in general, than other population groups subjected to non-lifetime deferral policies.  On the other hand, noting that all the other jurisdictions in the UK had adopted the recommendation, and that every year Northern Ireland required blood in excess of that collected locally and obtained it from sources that were using the new one-year deferral policy, Treacy found reason to question the rationality of the decision to maintain the more stringent rule for Northern Ireland.

He wrote, “The Minister has decided that MSM behavior creates such a high risk of infection to the donor  [I think he means to the recipient] that such donors must be permanently deferred with the result that such blood cannot enter the Northern Ireland Blood Stock. Importing blood from other places which do accept MSM donors, even in limited quantities, leaves the door open for MSM blood to do just that.  There is clearly a defect in reason here.  If there is a genuine concern about safety of MSM donated blood such the blood stock must be protected absolutely from such blood then the security of that blood must actually be maintained absolutely.  Applying a different standard to imported blood defeats the whole purpose of permanent deferral of MSM donors.  . . .  [W]hen blood is imported from the rest of the U.K., the authorities in NI do not request that such blood is not derived from the MSM community.”  Thus, in this respect, the Health Minister’s decision was irrational.

As to the charge of discrimination, Justice Treacy observed that the deferral category is based on behavior, not sexual orientation or identity.  Population studies show that a much larger percentage of gay men are HIV-positive than non-gay men.  “That male homosexual intercourse occurs mostly between men who are homosexual is unavoidable,” he said.

But he went on to develop at length the argument that the Health Minister was exceeding his authority when he made the decision to maintain the current system in the face of the SaBTO Report and its recommendation to shorten the deferral period from lifetime to one year, inasmuch as various laws and rules suggested that this was a matter that should have been brought before other authorities and not decided unilaterally by the Health Minister.   Indeed,the judge found a breach of the code of conduct binding on cabinet Ministers.  “The issue at hand is both controversial (it has generated much publicity and public debate, and views on the issue are highly polarized) and cross-cutting (it is acknowledged in the SaBTO report that it touches on equality issues, it further deals with the implement of EU Directives) and as such the Minister had no authority to act without bringing it to the attention of the Executive Committee.”

Thus, the court concluded that the “decision of the Minister was irrational” and “the application for judicial review is allowed.”

When I saw the first headlines about this ruling emanating from the press in Ireland and Britain, I thought the decision had taken a different route than it actually took to get to its conclusion.  Justice Treacy actually found that the decision could have been rationally and appropriately taken by the Executive Committee based on the scientific evidence to maintain the lifetime deferral if it were possible for Northern Ireland to get by without requesting additional blood supplies from other jurisdictions that have moved to the one-year deferral system.  I part company with him on this.  Based on the excerpts he quotes from the SaBTO report, it appears to me that the Report suggests that going from a lifetime deferral down to a 12 month deferral for men who have sex with men does not statistically increase the risk of HIV transmission through donated blood for a variety of reasons, including one that perhaps the Report does not even discuss:  that HIV-positive men who are adhering to the current generation of anti-viral drugs can so reduce the incidence of HIV in their blood stream as to almost entirely eliminate the risk of transmitting it, even in unprotected anal sex.  What the Report does show, through statistical analysis of cases of HIV transmission through blood donations, is that more such transmissions take place from heterosexual donors than from gay male donors, mainly from HIV-positive heterosexual women and IV-drug users of both sexes.  Furthermore, a more workably short deferral period  combined with major testing advances have reduced the dangerous “window” period during which recent infection does not trigger antigen tests to about nine days after exposure, during which a false negative test might occur.  Taking all these factors together, reducing the deferral period to a year does not increase the risk sufficiently to outweigh the harm of deferring many potential donors who present almost no risk, at a time of continuing shortages of blood, as shown by Northern Ireland’s need to import blood every year to make up the shortfall.   As public policy, it’s really not worthy of serious doubt; the lifetime deferral challenged in this case — and still in effect in the US due to the timorous Food and Drug Administration — is contrary to good public health policy.

Iowa Appeals Court Rejects Challenge to Conviction of Gay Man for Exposing Partner to HIV

Posted on: October 3rd, 2013 by Art Leonard No Comments

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.

Supreme Court Holds Anti-Prostitution Pledge Required by Federal Funding Law to be Unconstitutional

Posted on: June 20th, 2013 by Art Leonard No Comments

Today the U.S. Supreme Court ruled that a federal statute conditioning funding for overseas HIV-prevention work by non-governmental organizations on those organizations having a policy explicitly opposing prostitution violates the 1st Amendment.  Writing for the 6-2 majority, Chief Justice John R. Roberts, Jr., quoted from the Court’s famous Flag Salute case from 1943, which stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Alliance for Open Society International and Pathfinder International are non-governmental organizations that undertake HIV prevention work in Africa and Asia.  Both organizations received U.S. government funds in support of their work.  In 2003, the government enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, appropriating billions of dollars to assist in such efforts.  The statute provides that no funds made available by the Act “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking,” and that funds may not be provided to any organization “that does not have a policy explicitly opposing prostitution and sex trafficking.”  Alliance and Pathfinder do not promote or advocate legalization of prostitution, but both organizations believe that adopting a policy “explicitly opposing prostitution and sex trafficking” would create difficulties in their working with some governments as well as NGOs in other countries.  Indeed, Congress itself acknowledged this sort of difficulty, in part, by expressly excluding from this Policy Requirement the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative, and any United Nations agency.

At least a portion of the world community fighting HIV, including both governmental and non-governmental organizations, actively advocates for decriminalization of prostitution as a means of enlisting prostitutes in the effort to promote safer sex, and in some parts of the world it is clear that active engagement with prostitutes in prevention efforts is an important strategy for reducing HIV-transmission.  Neither Alliance nor Pathfinder seek to advocate for decriminalization, either with their federal funds or with their funds from other sources, but they did not want to adopt formal policy statements opposing decriminalization, and argued that it was improper for Congress to place this condition on their continued receipt of funding.

They brought suit in the U.S. District Court in New York and won a temporary injunction against suspension of their existing grants while the free speech issue was litigated.  Ultimately, the district court and the 2nd Circuit Court of Appeals agreed with the plaintiffs that the Policy Requirement was unconstitutional.  The government appealed, noting that the D.C. Circuit Court of Appeals had upheld the requirement in another case.

Justice Roberts pointed out that “as a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds,” even where the objection is that the “condition may affect the recipient’s exercise of its First Amendment rights.”  But the Court saw this case as different.  Writing in dissent, Justice Antonin Scalia (joined by Justice Clarence Thomas) argued that because Congress’s purpose in the Leadership Act was, among other things, to discourage prostitution as part of its strategy against HIV, limiting federal funding to those organizations who were in accord with the government’s policy preference was a reasonable method of selecting funding recipients.  Roberts responded that “the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program — those that specify the activities Congress wants to subsidize — and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” 

Another way of putting it is that Congress can decide not to fund speech with which it disagrees, but it is quite another thing for Congress to use its funding to require recipients to adopt as their own and express the government’s views on those policies.  So long as a recipient refrains from advocating for the policies condemned by Congress, the Court would protect the recipient’s continued receipt of the funds.

Roberts acknowledged that the line between permissible and impermissible speech-based conditions “is hardly clear,” but asserted that the challenged condition in this case clearly crosses the permissible line.  “By demanding that funding recipients adopt – as their own – the Government’s view on an issue of public concern, the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program,'” wrote Roberts, quoting from the Court’s prior decision upholding certain speech restrictions on recipients of federal family planning money.  In that earlier case, Rust v. Sullivan, the Court upheld Congress’s requirement that recipients of such funding not use the funds in any program where abortion is a mechanism for family planning, and regulations under that law prohibited such funding recipients from providing abortion counseling or making referrals to abortion providers in programs that received federal money.  The Court’s rationale was that Congress has a right to decide which speech it will fund, consistent with its determination of public policy.  But this case is distinguishable, since it requires funding recipients to affirmatively adopt as their own the policy dictated by Congress. “By requiring recipients to profess a specific belief,” wrote Roberts, “the Policy Requirement goes beyond defining the limits of the federally funded program to defining the recipient.”

The Court rejected the argument that the government had saved the program from constitutional attack by adopting guidelines allowing recipients to establish separate affiliated organizations, non-recipients of federal funds, that could advocate for legalizing prostitution.  “When we have noted the importance of affiliates in this context,” Roberts wrote, “it has been because they allow an organization bounded by a funding condition to exercise its First Amendment rights outside the scope of the federal program.  Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own.  If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs.  If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evidence hypocrisy.”  Roberts also rejected the government’s argument that without the Policy Requirement a funding recipient could use non-government funds to defeat the government’s policy goals by advocating for decriminalization, at least in the absence of any evidence that this would be the case here, where the plaintiffs are not seeking to articulate any position on the issue of whether prostitution should be legal.

Roberts observed that “the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program.  It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”  This “violates the First Amendment and cannot be sustained.”

Unprotected Sex as “Aggravated Assault” – Are Military Courts Getting Competent Expert Testimony on HIV?

Posted on: April 5th, 2013 by Art Leonard No Comments

The U.S. Air Force Court of Criminal Appeals has affirmed the conviction of an HIV-positive Airman for failing to obey a lawful order, indecent acts, aggravated assault, and adultery, upholding the court martial’s sentence of dishonorable discharge, eight years confinement, total forfeitures of pay and benefits, and reduction in grade.  The basis for the charge?  Tech. Sgt. David Gutierrez and his wife participated in group sex activities with others without Gutierrez disclosing he was HIV-positive, and Gutierrez did not consistently use condoms during these activities.  There is no evidence that any of Gutierrez’s sexual partners has become infected as a result of these activities.

According to the per curiam opinion issued by the court on March 21, 2013, Gutierrez tested positive in 2007. When he was reassigned to McConnell Air Force Base in Kansas, his new commander gave him the order to “follow preventive medicine requirements in accordance with Air Force instruction 48-135,” which requires disclosing HIV status to sexual partners and following safer sex rules.  The court’s opinion does not relate how the “group sexual activities” of Gutierrez and his wife came to the attention of military prosecutors. Indeed, the opinion doesn’t even mention whether Gutierrez’s wife knew that he was HIV-positive.

On appeal, Gutierrez argued “ineffective assistance of counsel” because his military defense lawyer refused to accept “an offer of free expert assistance from the Office of Medical and Scientific Justice,” an organization that provides free assistance to defendants “facing HIV-related charges.”  Instead, the defense lawyers consulted an “HIV expert” who was “appointed and paid for by the convening authority,” and whose expert testimony apparently did not help Gutierrez very much at his court martial.

The charge of aggravated assault, the most serious one that he faced, is based on the idea that he engaged in activity that was “likely” to produce death or grievous bodily harm.  This logically breaks down into two components: how likely was it that Gutierrez would infect a sexual partner by failing to use condoms, and likely is it that somebody newly-infected with HIV will suffer death or grievous bodily harm as a result? 

At the court martial, the expert witness testified that based on Gutierrez’s viral load at the time the odds that he would transmit HIV to a sexual partner during “unprotected vaginal intercourse” were “somewhere between 1 and 10 per 10,000 exposures” and that condoms would be effective in blocking transmission “97 to 98 percent of the time.”  The expert also testified that the change of transmission through oral sex was “zero.”  As to the consequences of infection, the expert testified “that the disease has no cure and that without medical intervention an infected person will die of AIDS.”  From this, the court of appeal reasoned, “Thus, while the likelihood of transmission is low, the likelihood of death or serious bodily harm resulting from infection is quite high.  Given the extreme magnitude of potential harm and applying the standards” of prior military HIV exposure cases, “the military judge sitting as the trier of fact could have found all the essential elements beyond a reasonable doubt,” so the court rejected Gutierrez’s argument that the evidence did not support his conviction on the aggravated assault count.

The court acknowledged that in one of the past cases, a concurring judge had questioned the continued application of some of the earlier precedents “under the current state of scientific evidence regarding HIV and AIDS,” but that didn’t seem to give pause to the court of appeals in this case. 

Surely it was wrong of Gutierrez not to disclose his HIV status of he was going to engage in unprotected sex, if — as the testimony indicated — his viral load was high enough for him to be infectious.  There is controversy about using criminal law in HIV cases, especially when no “victim” was actually harmed.  But if criminal law is to be used, one might question why the evaluation of consequences of transmission assumes the likelihood that victims won’t get treatment, will consider only whether somebody who lacks treatment will die from AIDS, and will neglect entirely the status of HIV infection as a manageable chronic infection for many people.  One  suspects that the expert testimony that the defense counsel rejected might have been more helpful than the expert testimony provided and paid for by the government in this case.

The court also rejected Gutierrez’s argument that the group sex activities, since consensual, could not be prosecuted as “indecent conduct” or “adultery.”    The court said that when Gutierrez failed to disclose his HIV status, he vitiated consent, and the fact that his wife participated in the group sex activities did not mean that Gutierrez was not committing adultery.  The court rejected the claim that Gutierrez received ineffective assistance of counsel because his appointed counsel rejected the proffered free assistance, and refuted Gutierrez’s claim that the defense proceeded without any expertise, based on records showing that the government expert was compensated for 16 hours of work in connection with this case.

Appellate Division Unanimously Affirms Dismissal of Defamation Claim in HIV/AIDS Controversy

Posted on: February 19th, 2013 by Art Leonard No Comments

New York Appellate Division, First Department, has affirmed dismissal of Celia Farber’s lawsuit contending that she was defamed by an email that Richard Jefferys sent to Walter Fauntroy in 2008.  Fauntroy was coordinating testimony for “Whistleblower Week,” an event organized by the Semmelweis Society International, during which a “Clean Hands Award” was to be presented to Farber and Dr. Peter Duesberg “for their stance as HIV dissenters, which put them at odds with the medical establishment,” according to the summary judgment opinion issued by New York Supreme Court Justice Louis B. York in 2011.  Farber, a journalist, had published an article in Harper’s Magazine in 2006 that was critical of the medical establishment’s acceptance of HIV as the cause of AIDS and anti-retroviral medications as appropriate treatment for HIV infection.  The Appellate Division ruling in Farber v. Jefferys was released on February 19, 2013.

Jefferys, a longtime activitist in the HIV/AIDS community, is affiliated with the Treatment Action Group, formed as an off-shoot of ACT-UP to promote research and education in the fight against the AIDS epidemic.  He participated in a publication issued in response to Farber’s article, titled “Errors in Celia Farber’s March 2006 article in Harper’s Magazine,” which asserted that there were 56 factual errors in the article.  Among the co-authors of this article, which was widely disseminated on the internet, were prominent researchers and medical academics.  Jefferys reacted to the news that Farber and Duesberg were being honored by sending Fauntroy the email in which he stated: “These individuals are not whistleblowers, they are simply liars who for many years have used fraud to argue for Duesberg’s long-discredited theory that drug use and malnutrition – not HIV – cause AIDS.”  The email offered to provide documentation for his allegations, and asserted that including Farber and Duesberg in the planned event “with, regrettably, discredit and demean your efforts to support the very real issues of recrimination against legitimate whistleblowers.”

Jefferys’ email resulted in Farber being dropped from public participation in Whistleblower Week, although her award was presented to her in a private ceremony.  She filed suit against Jeffreys and others involved in circulating criticisms of her HIV-related writings.  She particularly focused on Jefferys calling her a liar, and she claimed that various criticisms he made of her work were incorrect.

In his 2011 decision dismissing Farber’s defamation claim, Justice York found that Farber was a “limited public figure” and that the subject matter of the controversy was “a matter of public interest.”  Both of these conclusions supported his finding that in order to maintain her lawsuit, Farber had the burden of showing that Jefferys had made incorrect statements with “actual malice,” a constitutional standard requiring that she demonstrate that he made these statements either knowing they were false or with reckless disregard for the truth.  Justice York found that Farber’s complaint and the documentation she offered in response to Jefferys’ motion  to dismiss the case were insufficient to meet this burden.

The Appellate Division’s five-judge panel agreed with Justice York.  He “properly determined that plaintiff was a limited public figure because, through her publication of countless articles, she voluntarily injected herself into the controversial debate on whether HIV causes AIDS with a view toward influencing the debate and projected her name and personality before readers of nationally distributed magazines to establish her reputation as a leading authority in this area.” 

The appellate panel also found that “Jefferys met his burden of demonstrating that plaintiff could not show by clear and convincing evidence that he made the challenged statements with actual malice or with gross irresponsibility.”  Jefferys had explained that his statements were based on “his expertise and research on HIV/AIDS for many years, on an article signed by prominent experts in the field, as well as on the many articles in the record which critiqued plaintiff’s 2006 article as being filled with misquotes or misrepresentations.”  The court continued, “Jefferys also provided documentation to support why he believed what he wrote about the plaintiff was true and compared in detail plaintiff’s journalism to the articles and studies she cited and explained why he believed her work to contain misrepresentations.”

The point of the case is that robust debate on issues of public importance requires a wide degree of toleration for argument and rhetoric, and so long as somebody is not deliberately publishing falsehoods or making statements harmful to the reputation of others without regard for whether they are true, the speaker will be protected from liability for defamation.  In this case, the court found, Farber’s assertion that “Jefferys was biased against her or bore her ill will does not aid her cause,” since that is not the issue in determining “actual malice” as that term is used in constitutional law concerning freedom of speech.

Finally, the court agreed with Justice York’s conclusion that Jefferys’ use of the word “liar” to describe Farber was not subject to legal liability.  “The full content of the statement, including its tone and apparent purpose, and the broader context of the statement and surrounding circumstances leads to the conclusion that what was being read was likely to be opinion, not fact,” and generally legal liability for defamation is limited to factual assertions.  Thus, the court concluded that it was appropriate for Justice York to dismiss the case rather than to subject Jefferys to discovery and trial on the defamation claim.

 Jefferys’ attorney had the following comment on the decision:  “The Appellate Court’s unanimous decision dismissing Celia Farber’s claim against Richard Jefferys upholds important First Amendment rights.  The decision permits Mr. Jefferys to continue to focus on his incredibly valuable work on HIV policy, advocacy, and education.  It is a great result for Mr. Jefferys and the public.”  Statement of Joseph Evall, partner at Gibson, Dunn & Crutcher LLP, and lawyer for Mr. Jefferys.


8th Circuit: Homeowner’s Liability Policy Doesn’t Cover Sexual Transmission of HIV

Posted on: February 13th, 2013 by Art Leonard No Comments

Affirming a ruling by U.S. District Judge Greg Kays, of the Western District of Missouri, a panel of the 8th Circuit found that American Family Mutual Insurance Company was not required to defend its insured, Brent Lambi, against a claim by Brian Potter that Lambda had infected Potter with HIV while they were having sex.   Lambi v. American Family Mutual Insurance Co., 2013 WL 490778 (Feb. 11, 2013) (not published in F.3d). 


When American Family refused to defend Lambi, claiming that their policy did not cover this alleged injury to Potter, Lambi sued in federal court to enforce the policy.  Generally, insurance companies have an obligation to defend their insureds against claims the claims are even just arguably covered by the policy, even if the claim turns out to be non-meritorious, but the defense obligation does not apply if the policy clearly excludes coverage.  In this case, the policy insures Lambi against claims that his negligence has caused bodily injury to another, but the policy states that “bodily injury” does not include “a. any of the following which are communicable: disease, bacteria, parasite, virus or other organism with are transmitted by any insured to any other person.”  The policy also has an “abuse” exclusion which would, said the court, apply to a bodily injury “arising out of or resulting from any actual or alleged sexual molestation or contact,” and the court said the policy also specifically excludes bodily injury “arising out of the actual or alleged transmission of a communicable disease.” 


It sounds like American Family’s lawyers drafted the insurance contract with the specific intention to avoid providing coverage for any sexually transmitted disease or condition.  On the other hand, Lambi argued, the definition of bodily injury in the policy includes “sickness,” rendering it ambiguous, which might be sufficient to trigger the defense obligation.  The court wasn’t buying this, because of the clear applicability of the policy’s express exclusions from coverage.  “The policy excluded bodily injury arising out of the actual or alleged transmission of a communicable disease,” concluded the court, “and infecting another with the HIV virus clearly falls within the plain and ordinary meaning of the transmission of a communicable disease.”