In 2009, Nick Rhoades was sentenced to 25 years in prison and registered as a sex offender because he had sex with someone without revealing he was HIV-positive—even though they used a condom and the other man never contracted HIV.
A year prior, Rhoades had a one-night stand with Adam Plendl. A few days later, a mutual friend revealed Rhoades might be positive and an enraged Plendl went to the police. Rhoades was arrested in September 2008, and on the advice of his lawyer, pleaded guilty. He was handed the maximum penalty for intentionally exposing Plendl to HIV—despite the fact they’d used a condom and Rhoades had a virtually undetectable viral load.
“The law only applies to those who intend to expose others to HIV,” said Christopher Clark, Senior Staff Attorney for Lambda Legal. “This conviction cannot stand because someone who engages in safe sex is not guilty of criminal transmission of HIV. Nick’s use of a condom clearly indicates that he was protecting his sexual partner from exposure.”
Iowa is one of 34 states that have criminalized HIV transmission—but one of only a few that make simple nondisclosure a crime. And its penalties are among the stiffest: In California, the sentence for willful exposure is eight years. In Illinois, it’s seven.
In 2010, Rhoades appealed his conviction, claiming his original attorney offered ineffective counsel. The court denied his appeal and now Lambda Legal is representing Rhoades as he takes his case to the state’s Supreme Court.
“Criminal laws, like the one in Iowa, unjustly target people living with HIV and subject them to unwarranted prosecution and punishment,” said Scott Schoettes, HIV Project Director for Lambda Legal.
But Rhoades is hardly the only person to run afoul of Iowa’s strict HIV-transmission law: Donald Bogardus, a nurse’s assistant in Waterloo who has cerebral palsy, is also an accused felon for having protected sex without telling his partner.
“I wanted to tell him,” Bogardus told The Daily Iowan in February, “but when I went to say it, I clammed up. So many things came across my mind. I was afraid he was going to blab it out to everybody. But I still regret not telling him. I really do.”
As with Rhoades, Bogardus did not actually infect the other man.
Critics of Iowa’s transmission law—whose number include the Iowa Department of Public Health and the Iowa Attorney General—say it’s outdated and needs to be adjusted or scrapped altogether.
One complaint is that it puts the burden of protection solely on the shoulders of HIV-positive people. “People who don’t have HIV should be just as responsible for not transmitting HIV as the people who aren’t healthy,” Poz magazine founder Sean Strub told The Daily Iowan.
Another criticism is the law, which dates to 1999, doesn’t take into account factors like the type of sex act performed, the viral load of the alleged “perpetrator,” whether or not a condom was used or whether the virus was actually transmitted.
Let’s face it, oral sex with a condom on someone who’s got a undetectable viral load isn’t the same as second-degree murder. But in Iowa the two crimes have the same sentencing guidelines.
And law seems excessive given how rare such instances occur:
Research by the HIV Center for Law and Policy puts Iowa second only to Tennessee in number of prosecutions related to HIV, an especially startling ranking given Iowa’s relatively low prevalence of HIV compared to other states.
Iowa court and public health records show that 25 individuals have been charged with 37 counts of criminal transmission of HIV since the law took effect in 1999, and 15 of these defendants have been convicted on a total of 25 counts.
The state has been particularly aggressive in prosecuting cases for exposure rather than actual transmission of the virus. At least four victims in Iowa cases have contracted the virus, but in most cases no transmission is documented.
Lastly, prosecution of such an offense boils down to a game of “he said, he said” regarding what was or wasn’t mentioned in the heat of the moment between two consenting adults.
Can we really say someone wouldn’t lie after waking up and regretting an unwise encounter?
According to the Iowan, State Sen. Matt McCoy (D-Des Moines) is working on a bill to amend the transmission law.”While at the time the law was based on what we knew, and I believe was necessary and fit the crime, so much has changed,” McCoy told the paper. “It’s now inappropriate and out of step with current public health knowledge, and our use of the law is out of step with the rest of the country. The law is overly punitive and harsh.”