Here's Where Sex When HIV-Positive Won't Mean Being Labeled a Sex Offender

6-21-2014 Iowa:

In 2008 Nick Rhoades had sex with Adam Plendl, a man he met online. The sex was consensual—both men were adults—but Plendl contacted police afterward because he learned that Rhoades might be HIV-positive.

In Iowa and 34 other states HIV-positive people are breaking the law if they do not disclose their status before sex. Even though the couple used a condom and Plendl didn't contract the virus, Rhoades was charged with criminal transmission of HIV, a felony that can carry a sentence of up to 25 years. On the advice of his lawyer, Rhoades pleaded guilty in 2009.

Rhoades spent several months in jail before his 25-year sentence was commuted to five years of probation. He has also had to register as a sex offender.

After the sentencing he received an outpouring of support from friends, family, and HIV activists.

“Murderers and child rapists receive less time than this young man did,” one of Rhoades' friends wrote to the sentencing judge.

Since he was convicted Rhoades has been a dogged opponent of criminal transmission laws across the country. He is part of a growing movement. Activists, lawyers, public health experts, and lawmakers have criticized these laws, arguing they discourage people from disclosing their status for fear of prosecution or discrimination. Many also say that intentional transmission—the act most laws aim to punish—is rare.

Criminalizing transmission "undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases," according to the REPEAL Act, federal legislation introduced in 2011 by California Rep. Barbara Lee that would review state and federal laws criminalizing HIV.

When overturning Rhoades’s conviction, the court said that it was unclear whether Rhoades actually exposed Plendl to the virus. In the event that he did, the court found that it was still not clear whether that exposure was intentional and likely to transmit HIV. The Blackhawk County court that initially sentenced Rhoades will now have to decide whether to try the case, negotiate a plea, or throw out the charges.

Rhoades called the court’s decision “a victory for EVERYONE living with HIV,” Sergio Hernandez at BuzzFeed reported. Since 1990 more than 500 people have been charged with criminal transmission of HIV, some for acts such as spitting or biting, which pose almost no risk of transmission. This April an Illinois woman was charged after she spit on an officer while in police custody.

Two weeks before Rhoades’ conviction was overturned, Iowa revised its criminal transmission law. Now those convicted of criminal transmission no longer have to register as sex offenders. The law retroactively removes those on the list because of a criminal transmission conviction, including Rhoades. Ronald Bogardus, an Iowa man with cerebral palsy, also pled guilty to not telling his partner about his HIV status. Bogardus is a dedicated nurse's assistant with an undetectable viral load.

Bogardus was sentenced to probation in February. If he can be removed from the sex offender registry, he may be able to work as a nurse's assistant again.

Last year he told The Daily Iowan, “I wanted to tell him, but when I went to say it, I clammed up.... I was afraid he was going to blab it out to everybody. But I still regret not telling him. I really do.” ..Source.. by Nicole Pasulka

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Sex Offenders No More? Iowa Reconsiders Tough Law on HIV Exposure

3-30-2014 Iowa:

In 2006, a few years after Leslie Flaggs learned she had contracted HIV, she made a new friend at her church in Sioux City, Iowa. As her relationship with the man turned from Bible study to intimacy, Flaggs said, she revealed to him that she had the disease.

But the man went to police in May 2007 and said she hadn’t disclosed her HIV status until after they’d slept together. Flaggs says that because she feared the man – who was convicted of domestic abuse-assault for hitting her two weeks before he filed his complaint, according to court documents – she didn’t challenge his story to police.

Flaggs agreed to a plea bargain rather than face the alternative: up to a quarter century in prison as mandated by a state law targeting criminal exposure to HIV. She received a 25-year suspended sentence, four years of probation and a decade on the sex offender registry. Prosecutors at the time said her accuser did not acquire HIV; the law applies whether or not victims are infected. NBC News could not reach him recently for comment.

For Flaggs, 53, living with the disease and being on the sex offender registry has been so hard that she has contemplated suicide. “This has taken my life," she said. "I feel like I’m in prison.”

But things may soon change for people living with HIV in Iowa: Lawmakers are debating whether to repeal the state law on criminal exposure and replace it with one that would impose more moderate sentences and would better reflect current medical understanding of how the disease is transmitted. If the legislation is approved, Iowa would be one of the first states to revise its decades-old statute that imposes criminal sentences for HIV exposure. HIV/AIDS advocates have long been fighting for such changes to the more than 30 state laws nationwide, but they’ve often met resistance.

“We’ve got to get this done this year,” said Tami Haught, of an Iowa nonprofit, Community HIV/Hepatitis Advocates of Iowa Network. She last month watched another Iowan receive a sentence similar to Flaggs’, and yet another state resident recently challenged his conviction for not disclosing his status to a partner even though he used a condom. “We can’t open up any other Iowan to this kind of prosecution when it is so unjust.”

Iowa’s current law imposes a maximum 25-year prison term regardless of whether the victim contracts the disease or whether there was intent to transmit it. The new legislation would create a tiered-sentencing system: the 25-year sentence still applies for those who aim to infect and whose victims acquire HIV, but those who did not intend to transmit the disease yet still exposed someone to it can get up to five or ten years in prison depending on whether or not their doctor told them that risk of transmission was high or low. And for the first time, those accused can seek acquittal if their doctor testifies that there was little to no chance of them passing the disease to others.

Like many other states, Iowa passed its HIV criminal transmission law after Congress approved the federal Ryan White Comprehensive AIDS Resources Emergency (CARE) Act in 1990. A provision of that law, which funds essential medical and support services to people with HIV, required every state to certify that its criminal laws were sufficient to prosecute any HIV-infected individual who knowingly exposed another person to the disease – even if they didn’t transmit it -- at the height of the epidemic.

But with more understanding of HIV and improved drugs and care management options, the disease is no longer the death sentence it once was. And often, there is less risk of exposure. An HIV-positive person with undetectable levels of the virus in their blood -- common these days thanks to treatment that was in its early stages of use and was unproven when Iowa’s law was passed -- isn’t likely to transmit it to anyone else. Criminal exposure statutes should be changed to take the modern realities of living with HIV into account, advocates say.

“These laws reflect a severe misunderstanding about the roots, the risks and the consequences of HIV infection that are stuck in the 1980s despite the fact that treatment of HIV has changed dramatically,” said Catherine Hanssens, executive director of The Center for HIV Law and Policy, an advocacy group.

It’s not just advocates who say the laws are outdated: The U.S. government’s Office of National AIDS Policy said studies show that intentional transmission is “atypical and uncommon” and has called on states to re-consider their statutes. These laws often “run counter to scientific evidence” about how the disease is transmitted and may “undermine” public health efforts to promote HIV screening and treatment, the group said in 2010.

The Presidential Advisory Council on HIV/AIDS, has weighed in, too, issuing a resolution in 2013 calling for an end to the HIV-specific statutes, noting that among the concerns it shared with the national AIDS office was that such laws can lead to the unjust imprisonment of women and young people who don’t disclose their HIV status because of fear of violence.

Most of the state laws were passed before studies showed that antiretroviral therapy reduces the risk of HIV transmission, according to a recent article by the Centers for Disease Control and Prevention and the Justice Department. The laws also don't consider effective prevention measures, such as condoms.

"Many of these laws criminalize behaviors that pose low or negligible risk for HIV transmission," the authors said as they called for the state laws to be re-examined. The statutes could have "wide-ranging social implications," including "the perpetuation of misinformation" regarding how the disease is acquired, said the article published in the AIDS and Behavior journal.

It’s not clear how many people have been charged under any of the state HIV criminal statutes or similar laws in two U.S. territories. Hanssens’ center has tallied 180 prosecutions from 2008 to 2013, but she cautioned that the numbers weren’t complete since there is no uniform way of counting such cases nationwide. HIV-specific criminal laws are classified as felonies in 28 states and misdemeanors in two others -- Maryland and North Carolina. If convicted, prison terms vary by state: from a few years to decades.

And most of the laws don’t require transmission of HIV – just exposure, which doesn’t have to involve sex. In many of the states, district attorneys can pursue charges for spitting, biting or blood exposure, for sharing needles, or for blood, tissue and organ donations. But the Centers for Disease Control and Prevention says transmissions via most of these routes – except for needle sharing -- are less common than sexual transmissions or are very rare (it’s also impossible to get the disease from saliva).

Even some states without such HIV-specific statutes have used their general crime laws to prosecute people with the disease: A man was sentenced to a decade in prison after biting a police officer in upstate New York (his conviction was overturned in 2012 after a court ruled his saliva couldn’t be considered a “dangerous instrument.”)

Officials have warned about the public health fallout of such HIV criminal laws. Randy Mayer, chief of the bureau of HIV, STD, and Hepatitis at Iowa’s public health department, who supports updating the existing law, said a key concern is that the statute could be preventing people with HIV from seeking care out of fear “that somebody might use it against them.”

“It’s very clear that in Iowa, stigma is really a problem,” said Mayer, who has observed this issue in his 14 years working with people who have HIV or AIDS. A lot of it, he added, stems from prosecuting HIV sufferers “in a way that we don’t do for any other disease.”

Advocates have been working for years to get the HIV laws off the books. So far, Texas repealed its law in 1994 (though it used a general criminal statute to send a HIV-positive man away for spitting in 2008) and Illinois made some changes in 2012 to its statute that require prosecutors prove intent to transmit the disease and prohibit charges based upon biting, spitting, kissing and oral sex. At the federal level, lawmakers passed legislation in December requiring the Defense Department to study whether its current HIV and Hepatitis B policies represent medically-accurate understandings of these conditions.

But mostly, advocates say, they’ve encountered steep opposition to change at the state level. It took activists in Iowa six years to get a bill through a single chamber in the legislature – and what is currently being debated is not exactly what they’ve hoped for since the House amended what the Senate approved weeks ago. The House version only allows for felony-level charges, rather than misdemeanors, and would keep those convicted under it on the sex offender registry – unlike the Senate bill (which the state’s attorney general helped to draft). If the House version doesn’t change before passage, the two chambers will have to work out the differences.

Haught, the Iowa activist, said the hurdles are “dealing with the stigma, the stereotype, the fear and the discrimination that just automatically comes with HIV and AIDS.”

“Thirty years into the epidemic, we had hoped that we would be past that,” said Haught, who has HIV. “If you have cancer, people care. If you have AIDS, people judge.”

Iowa Rep. Chip Baltimore, who chairs the judiciary committee that approved sending the bill to the House floor, said the legislation needed to put more emphasis on the impact to victims. But he said lawmakers were trying to balance that with the culpability of the infected person and the public health concerns regarding testing and treatment.

“We acknowledge that the science and the medical advancements are rapidly making things much, much better,” he said, adding that the existing law was “draconian” and needed to be revised. Before the House votes on a final version, amendments can be made “and I suspect that we probably will make some,” he added.

Some prosecutors said they support criminal penalties, such as Assistant Woodbury County Attorney James Loomis, who handled Flaggs’ case. “I think it’s pretty serious when you’re engaging in that kind of behavior and you don’t advise the other person involved that you’re HIV positive,” said Loomis. “I think that a 25-year sentence is appropriate.”

The National District Attorneys Association encourages states that are re-visiting these HIV-specific laws to make them consistent with the latest medical advances, said Scott Burns, executive director. But regardless of whether or not the disease is transmitted, “it should be a crime in all 50 states for a person infected with HIV to have sex with another person and not disclose that,” he added.

Iowa’s House of Representatives has until April 22 to vote on a final bill. The governor said he will closely review the legislation if it gets to his desk.

For those convicted under the old law, the new legislation as it is written now likely won’t help them. Flaggs would still have four more years on the sex offender registry, which has made it hard for her to find work since she must stay a certain distance away from places where kids gather, like schools. She recently moved to Mississippi, where her five adult children live, because of those restrictions – but is having trouble getting her HIV medication since the state public health department deems her too healthy to receive the drugs.

“Sometimes I am just so miserable. I am just so tired of it,” she said of being on the registry. “I am a sex offender because I am HIV positive.” ..Source.. by Miranda Leitsinger

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Guilty of illness: Milford man, a convicted sex offender, seeks to educate: HIV is not a crime

Notice "Sex Offender" under photo.

10-22-2012 Louisiana, Pennsylvania:

When sex offender ___ moved to town, police went door to door to warn Milford business owners and residents.

His crime?

___, who is HIV-positive, had sex with his partner.

Though consensual, it was an act that landed him in a hard-labor prison, branded him a sex offender and changed his life.

After a 2008 relationship ended badly, his then-partner told Shreveport, La., police that ___ did not disclose his HIV status before they were intimate.

Soon, ___ realized he was being investigated.

Search warrant

Sex crime detectives visited him at the Louisiana Second Circuit Court of Appeals, where he worked as an assistant clerk.

"The only question they ever asked me was, 'Do I know that person?'" ___ said.

One day he returned home from work and found a search warrant on the kitchen counter.

Detectives had gone through his apartment, opening doors and drawers, searching for documents and medicine related to HIV, the virus that causes AIDS.

"When I saw that, my stomach just turned. It was like, this wasn't real. Wow, I'm really being investigated. At that point, I did not understand how far it could go," ___ said.

'Shameful'

Things were quiet for a while. Then in August 2008, after ___ returned from lunch to work, court security called him to the front desk.

Sex crime detectives were waiting there with handcuffs.

"They told me, 'Put your arms behind your back. You are under arrest'," ___ said. "My mind went blank. I said, 'What for?' and one said, 'Do you want me to say what it is?'"

It was a humiliating confrontation in front of friends and co-workers.

He was not out as a gay man or as being HIV-positive. Not that he was trying to hide it. He just kept his personal life personal.

"It was shameful and it continued to be shameful," ___ said.

The charge was "intentional exposure to the AIDS virus."

He spent three days in jail, was released on bond and awaited multiple court hearings that dragged on for almost a year.

As an accused felon, he could no longer work in the court and was placed on leave.

Burden of proof

"In court, it boils down to whether the person with HIV can prove they disclosed," said Sean Strub of Milford, executive director of Sero, a national advocacy group that helps people who have faced stigma, discrimination or prosecution for being HIV-positive.

"We don't have laws like this for other sexually transmitted infections. In the absence of any measurable risk of transmission, they are just based on fear and stigma."

___ was convicted in June 2009, but it took nearly another year to be sentenced. He went to prison in July 2010 and was released in January 2011.

___ was required to register as a sex offender for 15 years, which in Louisiana comes with a long list of requirements.

His driver's license prominently declares him a sex offender, he must notify landlords and employers that he is a sex offender and when he moves to a new area, neighbors, businesses, schools, child care centers, parks and playgrounds must be notified of his presence.

Pennsylvania does not require this level of notification, unless the offender comes from a state where it is required, Strub said.

HIV criminalization

___ lives with a host of stigmas.

"If I could change being gay, I would. It's almost like I messed myself up for living in this society. I'm black, gay and a sex offender. Those things don't look good. You have to work three times harder to show yourself as a worthy person, not what society says you are," ___ said.

Despite the stigma, ___ says he feels like a normal person and draws self-worth from his faith.

"In Christ, there is no condemnation. I have no reason to be ashamed of being black, gay or being HIV-positive. I'm not defined by any of those things," ___ said.

In the days after being released from prison, he read an article about HIV criminalization written by Strub.

It was the first time he realized there was a name for what had happened to him and that others are being charged for HIV-related crimes.

'I care'

People charged with a crime get more severe sentences when they are HIV-positive.

"___ in Texas spit at a cop. Not nice behavior, appropriate for some kind of charge. But he was charged with assault with a deadly weapon, and it put him in jail for 35 years," Strub said.

Even without a crime, some with HIV are treated like criminals through discrimination.

Milton Hershey School and the AIDS Law Project of Pennsylvania settled a lawsuit last month involving a 13-year-old who was denied admission to the school because he tests HIV-positive. The school now will pay $700,000 to the boy and his mother and allow admission of HIV-positive students.

___'s mission in life has become ending HIV criminalization. Today he works with Strub as the assistant director of Sero.

"I realize the vulnerability of people with HIV and how easy it is for them to be received as people who intentionally want to harm people — that seems to be the idea — that is what we intend to do. We do not want to infect others. We just want to live our lives," ___ said. "It seems that because we are HIV-positive, we have no value. We are of value. It's like it's OK for us to be prosecuted. I'm doing this because it is hard being HIV-positive in a society that does not seem to care. I care. And I hope somebody else does." ..Source.. by Beth Brelje, Pocono Record Writer

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