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.
After he served about a year, Rhoades got his sentence suspended and he was placed on probation. But he’s still registered as a sex offender, making finding work difficult.
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.”
I would never, under any circumstances, sleep with a HIV- person if I was HIV+.
And I would definitely feel betrayed if someone did not disclose the fact they had the virus before sleeping with me. It’s about simple respect. Respect other’s choices and take responsibility for yours.
And welcome to the Nanny state where you don’t even have to look after your own health… That’s someone else’s responsibility.
Let’s get the police involved, too. They’re going to treat a gay man with HIV fairly, aren’t they?
The poor little cry baby who had sex with someone he didn’t know then called the police should be ashamed of himself. I suppose he was the kid in kindergarten who stood in the middle of the room screaming “who wet my pants!?!??”
Honestly, nobody is willing to take any kind of responsibility.
If person hasn’t been tested for HIV before having sex would that be classed as reckless endangerment?
If someone knows they have HIV and then sleeps with someone without telling them then they should be punished to the fullest extent of the law (“safer” sex or not). What would have happened if the condom broke or malfunctioned? What would have happened if the unknowing party had contracted HIV from the knowing party?
I do not think, “Oops, I knowingly gave you at worst a death sentence and at best a life sentence of drugs and illness,” is an acceptable thing to say.
Absolutely support Iowa’s law 100%. If you have HIV, you have a responsibility to not expose others. Sure everyone should act responsibly and look after their own health, but if someone fails to do that, it is not license for an HIV+ person to infect them.
Also, the fact that Rhoades’ partner got lucky and did not actually get infected is irrelevant to his guilt. If a terrorist plants a bomb and it turns out to be a dud, he is still going to prison. If I attempt to shoot someone, but it turns out there are blanks in the gun, it is still attempted murder. Absence of actual infection might be a factor in a lesser sentence, but Rhoades is still guilty. Lambda should be working for broader enforcement of the law, not undermining it.
Wow. These comments seem to show that the community is finally taking responsibility to stop the transmission. Next step is a huge educational campaign.
But that probably won’t happen. Gay culture has been ignoring the issue for thirty years, and I can’t belive they will do anything effective. It’s a disgrace.
The problem is these laws only encourage people not to get tested, which results in more poz guys around not being treated and having unsafe sex which spreads the disease further. In a 2008 CDC study 44% of the HIV+ men found weren’t aware of their status, which obviously means they weren’t on treatment which gives them a higher chance of transmitting the virus. How are we going to get more people tested and treated if they have to worry about getting a 25 year prison sentence whenever they have sex? Sure they theoretically shouldn’t get charged if they disclose but what happens if they’re drunk and don’t remember or if someone consents to sex and changes their mind later after finding out they got HIV and lies about the disclosure?
Why are we focusing on incredibly harsh punishments for people who are actually being treated and having safer sex while failing to adequately address what is actually continuing the spread of HIV. HIV is spreading because people are having unprotected sex and not getting tested, not because some guy on treatment had safe sex with a HIV- guy. Rather than trying to do something to prevent new HIV infections the law just punishes those who have HIV, accomplishing absolutely nothing.
And this is why I, like many others, proactively refuse to get tested. Best case scenario, the test comes back negative. Worst case scenario, I go from being a human to a deadly weapon in a matter of seconds. In that case, thanks but I would rather risk your safety than to jeopardize my entire life and future. Until you give me a better choice, that is sadly the only option I can see, because I refuse to open myself up to that kind of liability for any and every opportunistic leech or mentally unsound person that learns of my status. No status = no problem. If you want my compliance with testing, quit using laws like this to criminalize homosexuality by proxy.
@Ben: You’ve already slept with HIV positive people. This is exactly the type of mentality that is so infuriating and childish about negative gay men. Its a very common virus within the gay community, and with proper precautions can be avoided. All your attitude is doing is giving people good reason to lie and/or avoid the test.
@WillBFair: Gawd, you’re a fucking nazi. The gay community isn’t “taking responsibility”. Infection rates have increased in lockstep with these laws, while many now have very good and justifiable reasons to avoid the test. I’m from Iowa and I visit sporadically. If anything, the reality of the situation is understated by these articles. Gay men there are inreasingly engaging in a witchhunt, online and in real life. I’ve begun to actively urge people I know who are of unknown status to avoid the the test if they’re asymptomatic. There is NOTHING to be gained from these laws except the victimization and and prosecution of people who take control of their health.
@Jeff: What a sad, silly analogy. It didn’t “just happen” that Rhoades’ partner didn’t become infected, it was probably gauranteed by the fact that Rhoades was undetectable. The condom added a redundant layer of protection. Given that Rhoades’ partner was apparently accustomed to engaging in receptive anal sex with people of ambiguous status, its safe to say that Rhoades was one of the least risky exposures that childish slut had seen in a long time.
Some Random Guy
@Daez: and @Jeff: Rhoades’ partner did not just simply “get lucky.” The fact is that if an HIV+ person is on the proper meds and has an “undetectable” viral load, it is almost impossible for HIV transmission to occur since there is almost nothing to transmit anyway.
As others here note, these laws encourage certain people NOT to get tested (and therefore, not to get treated). As long as they don’t officially “know” they are HIV+ they are legally free to slut around all they want to. This is exactly the opposite of what the legal system should be doing.
In most places – including Iowa I bet – a drunk driver who actually KILLS someone gets maybe a year in jail! This shows how screwed up society’s priorities are.
“In that case, thanks but I would rather risk your safety than to jeopardize my entire life and future”
Your reckless disregard for your fellow humans is a true joy to witness.
At the end of the day, you are responsible for your own health. If you’re going to change your behavior and what you will and won’t do based solely on what is basically a stranger tells you, then you are rolling the dice in a crap shoot.
The fact is that unless you are in what you are is a positive (pardon the pun) monogamous relationship, then you should treat all of your partners as though they are positive, and conduct yourself accordingly. When I hear people say things like “I only have sex, unprotected or otherwise, with other negative guys” I just cringe, and realize that it’s only a matter of time before that person seroconverts.
“As others here note, these laws encourage certain people NOT to get tested (and therefore, not to get treated). As long as they don’t officially “know” they are HIV+ they are legally free to slut around all they want to. This is exactly the opposite of what the legal system should be doing.”
That makes no sense. A person who is reckless enough not to get tested because the fear of others knowing outweighs their own survival instinct and concern for others is not a person who would consciously inform others if the law was repealed. Either the person lacks the compassion/courage to inform or they don’t.
@Nat: You’re kidding, right? You’re actually demanding someone give up their entire life and future because you’re too lazy to protect yourself and too ignorant to understand the dynamics of transmission. Seriously? Then, you have the audacity to slam those people for having a “reckless disregard for their fellow human” because they’ve shown the slightest hint of self interest in the equation? Are you fucking kidding me? Grow the fuck up and take responsibility for yourself. We’ve failed to contain this epidemic because rather than take ownership of their own health, losers like you expect other people to march themselves out to see for your convenience.
Some Random Guy
@Nat: You’re missing the point. Rhoades was responsible enough to (a) get tested, (b) get treated to the point he wasn’t a threat anyway, (c) put a condom on. Sure, adding “(d) inform” to that would have been even better.
Mitch (#12) says “Given that Rhoades’ partner was apparently accustomed to engaging in receptive anal sex with people of ambiguous status, its safe to say that Rhoades was one of the least risky exposures that childish slut had seen in a long time.” That’s maybe a little harsh, but yeah.
If Rhoades’ partner had engaged in receptive anal sex with someone who was pretty sure he DID have HIV, but who hadn’t bothered to do ANY of a), b) c) or d) – and had a tremendously high viral load, and transmission did occur – there would have been no legal cause of action at all. That’s what makes no sense.
“You’re kidding, right? You’re actually demanding someone give up their entire life and future because you’re too lazy to protect yourself and too ignorant to understand the dynamics of transmission.”
1) I’m not talking about myself. Nor did I once mention not using basic protection.
2) Protection is an elastic concept. At the minimum, it should always include the use of condoms. But the duty of disclose is there for an individual to weigh the additional risk they’re subjecting themselves to by having sex with someone who’s been infected with HIV.
“Seriously? Then, you have the audacity to slam those people for having a “reckless disregard for their fellow human” because they’ve shown the slightest hint of self interest in the equation?”
3) That wasn’t a ‘slight’ hint of self-interest, it was pure self-interest. That someone would knowingly risk another person’s life by lying to them is a reckless disregard for another’s life.
“We’ve failed to contain this epidemic because rather than take ownership of their own health, losers like you expect other people to march themselves out to see for your convenience.”
You’re championing the cause of someone who refuses to get tested because he’s not willing to risk stigma. You’re in no position to lecture anyone on taking ownership of their own health. If you don’t care about others, simply state so, but don’t coat your response in a facade about caring about this epidemic.
“Protection is an elastic concept. At the minimum, it should always include the use of condoms”
The last time I checked, condoms were pretty damn effective. Even if they weren’t, you’re intentionally ignoring the second issue that current data is pretty unambiguous, people with undetectable viral loads aren’t infectious. The man in question had already gone to great lengths to protect his partner, regardless of how “elastic” you may think the concept is. “Protection” is not persecution and “disclosure” is not prevention. We’d all be better off it we realized that.
“the duty of disclose is there for an individual to weigh the additional risk they’re subjecting themselves to by having sex with someone who’s been infected with HIV.”
What additional risk? 1 in 10 gay men are poz but think they’re negative. Do you really think someone with an undetectable viral load and a condom is MORE risky than that? People like you love to use emotive phrases like “duty” when you discuss this epidemic, but you do a disservice in actually addressing how the virus is spread: It is not typically spread by people who are undetectable and using condoms. Actually, I’ve yet to hear of a single instance online or in real life where an undectable with a condom spread the virus. Regardless, I think we can agree that the risk is lower than Bottom McHookup was regularly exposed to with many of his other tricks. Its safe to say the buttslut was probably at no risk, and certainly at less rosl than he is regularly exposed to with many of his other anyonymous online hookups, so we’re not actually accomplishing any real prevention here. That begs the question of what this “duty” is really about.
“That wasn’t a ‘slight’ hint of self-interest, it was pure self-interest. That someone would knowingly risk another person’s life by lying to them is a reckless disregard for another’s life”
Oh? Pure self interest? So the OP is guilty of “pure self interest” for refusing to get tested for your convenience, and you are guilty of…what? And I’m not advocating reckless disregard for another’s life. No one is suggesting that he engage in unprotected sex, or even sex at all. To demand someone get tested to protect someone else is to shift the burden of prevention to the person who might be infected, away from the person who is concerned with it. This is an economically ludicrous concept, and an extremely unfair one.
“If you don’t care about others, simply state so, but don’t coat your response in a facade about caring about this epidemic”
Oh, I do care about others. I care so much that I’m suggesting we use the only economic concept which has been shown to work: rational self interest. Underneath your principles is the reality that we don’t have an ounce of it left in current prevention paradigms. They’ve become all about blame, discrimination, shame, fear and loathing. We’ve seen infection rates creep up as a result. Unlike you though, I also care about more than just some lowlife hypochondriac with a delusion of persecution because his anon buddies aren’t regularly testing and disclosing as an act of altruism. I also care about the person who now has a motivation to avoid the test. I care about the ultimate behavior of people who are at risk who’ve been given a delusion of safety by these laws, and yes, I care about people who are HIV+, who’ve been ghettoized and humiliated by these laws without any tangible benefit save some worthless principle of “duty”. These are concepts which are completely alien to this publication and its self navel gazing, self-centered posters. The fact that I weigh ALL of these things makes me the furthest thing from “uncaring”.
For those of you screaming about how Rhoades had an undetectable viral load and used a condom, I say that those factors should definitely be considered in sentencing. You don’t want to give him the same sentence as someone who has anal sex w/no condom. But he is still guilty of exposing another human being without telling him. That’s a crime. If the risk is so low, he can explain that to his partner. If his partner wants to proceed, then there is no crime even if transmission occurs.
If anything this law is too weak. Every HIV infected person must have a legal duty to disclose their status prior to having sex with someone. The pandemic will never end unless people who are infected know that they must A) always have sex protected by a condom and B) always disclose their status prior to having sex with someone.
@Jeff: Agreed, the sentence should be harsher if he had not used a condom. In that case it would be the equivalent of a murder charge. In this case, the sentence for this crime should not be as severe.
If someone is firing a loaded gun into a crowd, is it the shooter or the people in the crowd who are responsible for the health risk?
Some Random Guy
@DB: I would say: please do yourself a favor, never go out, stay home and jack off to porn 24/7. But you probably already do that.
@Jeff: Well, then, in that case, since a large number of gay men should realize they may have HIV without knowing it, we should all be prosecuted for engaging any kind of sexual activity since it holds the possibility of exposure.
…or is that not such a good idea when it’s suddenly turned back on your precious self?
@Jeff: What “exposure” are you even talking about? Undetectables aren’t infectious. The claim that infection can result from “a single strand of HIV” isn’t held up by science. Your “exposure” is an urban legend.
Anyone who contracts the disease and then has sex without telling the other person well in advance should be locked up for the rest of their natural life.
These patient zeroes deserve no sympathy.
@JayKay: Why? Please, try to justify your point without falling back on emotive bullshit like “he had a duty”. I’m curious to see what you say because going round and round with you people about the risk Rhoades posed compared to other gay men is like trying to teach a dog to walk on its hind legs.
@DB: You’re an idiot.
If having sex and taking responsibility for your own health is just too much work, maybe having sex is a bit too much responsibility for you. Try macrame.
@JayKay: no. You know who doesn’t deserve sympathy?
Someone who was such an idiot that he went out and had sex with someone he didn’t know and then called the police when he found that the whole world wasn’t focused on protecting him.
Sorry, but the one who deserves to go to jail is the cry baby who’s willing to have sex so long as everyone else protects him.
@Todd: Todd, I’m curious why you think a person with an undetectable viral load can’t transmit the virus? They’re not cured, you know. It’s just our tests are sensitive enough to detect the virus. There’s still plenty of virus there, that much is clear by the depressed T-Cell counts. So, where did you hear that?
It’s seems pretty damn harsh that he received 25 years. In some states this would be called reckless endangerment and he would have received 5 years with the book thrown at him. I have to wonder if the prosecution was able to establish that he has done this many times before by making contact with prior hookups. If he has then I think his non-disclosure is pretty willfull. If this was not the case then 25 years seems way out of line. Since the argument of disclosure is up I agree one hundred percent that status should be disclosed. It is respectful in allowing the other party to opt out of sexual contact. Seeing as this has drawn such strong feelings on both sides I think it should be a given if out of respect disclosure should be made. Not getting tested so there is the possibility of an incorrect status disclosure is at best irresponsible and at worst potentially life threatening. At let’s be honest, would someone not want to know if they are having sexual contact with someone who is positive? I would…because I would not want to inherit a drug resistance. That can happen too! So if for the sake of argument nobody disclosed how do we attack the transmission of this deadly disease? If you look at alot of the transmission data in some poor African countries the disease is passed on in straight couples more than gay couples for many reasons pertaining to acceptance of gays. Many men over there simply do not disclose, will not get tested, and will willing do whatever they want with no fear of consquences. If we cringe at what has happened to the burgeoning AIDS epidemic over there, why as a far more educated culture would we continue their risky behavior? Whether your here or there, if you refuse to disclose, won’t get tested, or simply feel the responsibility is everyone elses this diseases will never be destroyed simply because out of guilt, shame, fear others will willfully spread it. And don’t think for one minute that the I won’t get tested so I won’t know philosophy is responsible. IT just shows why we haven’t beaten this disease yet.
The sentencing is pretty ridiculous but it should still be a crime if the knowing HIV positive person doesn’t disclose, safe or not. That whole it being the negative persons responsibility to not spread the disease i indeology is a bunch of crap if people are just going around not disclose their status. What are people supposed to do walk around with rapid swabs and test anyone prior to intercourse or dating?
Undetectable load does not mean non-infectious. Whether the risk is sufficiently low to warrant continuing with a sexual encounter or not, that is for the partner to decide. Not you. And not Rhoades.
@ Red Assault:
Whether the partner was an “idiot” or “lazy” or anything else is irrelevant. Idiocy and laziness of the victim don’t justify the crime.
It is extremely stupid to take out your wallet and count your money in a dark alley. You should be responsible and make an effort to be aware of your surroundings and to take precautions to avoid being mugged. But if you are dumb and count your money in a dark alley, that isn’t justification for robbing you. The mugger will still be prosecuted and will still go to prison. So too should Rhoades.
No. 32 · Jerry wrote, “@Todd: Todd, I’m curious why you think a person with an undetectable viral load can’t transmit the virus? They’re not cured, you know. It’s just our tests are sensitive enough to detect the virus. There’s still plenty of virus there, that much is clear by the depressed T-Cell counts.”
While “can’t transmit the virus” is an overstatement, infection is the result of a random process, with the probability of a single HIV virus causing an infection being very low. In the typical case where one is exposed to it, a the amount of HIV is a lot larger than 1.
There’s a reduced risk of transmission when anti-viral drugs are used, although it is not perfect.
BTW, an HIV test is not perfect either – there is a “window period”, whose length depends on the test, where a person can be infectious/infected and the test will be negative. If you test for antibodies, for example, it takes some time after being infected to start producing those.
First of all, the difference between having protected sex without disclosing your HIV status and a terrorist act is intent.
Secondly, you completely ignore the responsibility a non-infected person bears to protect his own health.
Sounds like a law that may make folks think twice about not disclosing. Some guys think it’s a game, and this law basically says, “game over, queen”. I see no problem with it except that it’d probably be more useful in the bigger gay cities.
This isn’t just a gay problem. More and more straight people are facing the same consequences. Not only that, but the idea of a “he said/she or he said” conviction is ludicrous. If I am involved in a relationship, knowing I have HIV, I should probably have a document stating that I told you exactly what I have, along with having it witnessed by my attorney and a Notary with two non-partisan witnesses. Otherwise, if you become angry with me I stand every chance of being shipped off to prison for 25 years (and made to register as a life-long sex offender), which is longer than many, many cold-blooded murderers and rapists spend in prison.
However, and unfortunately, the laws are specifically written to affect those who are gay. Although there are other “deadly” deseases out there, HIV is the only one that has been targeted. Off the top of my head I can think of Syphillis, Hepatitis B & C, Chlamidia, HPV, Tuberculosis, Meningitis and Encephalitis. Granted, any of these diseases are treatable and do not necessarily carry a death sentence. Oh! HIV also falls within that treatable-and-not-necessarily-lethal category as well.
Refusing to learn if one is ill, due of these draconian and targeted laws, leaves the risk to those who infected (yet not diagnosed) individuals choose to have sex with. As with birth-control, protection is the responsibility of both parties, but choosing to remain ignorant of one’s HIV status can only shorten ones life-span as well as others.
Ignorance is no longer bliss.
some of these comments are truly mind-blowing in their asinine non sequiturs. Seriously- comparing this dude to a terrorist who plants a bomb? Where did it imply that he was intentionally LYING about his status and NOT USING condoms to try and infect people? Oh, it didn’t. How some of you Einsteins inferred that from the article is beyond me. Where did it say that the poor little lamb who was ‘exposed’ to HIV even ASKED HIS PARTNER what his status is? Oh, it didn’t say that in the article, because it didn’t happen. The onus for protecting yourself from ANY STD, from HIV to pregnancy, is on YOU, unless you are raped. Did this guy rape his partner? No. From all accounts he did everything a responsible partner should do. He took care of his end, and the other guy dropped the ball and now he wants to blame someone else. I’m not having it. The guy who was in jail should sue for emotional distress, negligent legal advice, and anything else he can think of. It’s disgusting that it even happened, but that a fair number of comments here equate this guy to a domestic terrorist like the douchebag who just killed a bunch of Sikhs is even more disturbing.
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