USA - Iowa

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

Iowa
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
25
Number of people convicted: 
15
Applicable law: 

Iowa Code § 709C.1
1.  A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person's human immunodeficiency virus status is positive, does any of the following:
a.  Engages in intimate contact with another person.
b.  Transfers, donates, or provides the person's blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person.
c.  Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.

2.  For the purposes of this section:
a.  "Human immunodeficiency virus" means the human immunodeficiency virus identified as the causative agent of acquired immune deficiency syndrome.
b.  "Intimate contact" means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.
c.  "Intravenous or intramuscular drug paraphernalia" means any equipment, product, or material of any kind which is peculiar to and marketed for use in injecting a substance into or withdrawing a bodily fluid from the human body.

3.  Criminal transmission of the human immunodeficiency virus is a class "B" felony. 

4.  This section shall not be construed to require that an infection with the human immunodeficiency virus has occurred for a person to have committed criminal transmission of the human immunodeficiency virus.

5.  It is an affirmative defense that the person exposed to the human immunodeficiency virus knew that the infected person had a positive human immunodeficiency virus status at the time of the action of exposure, knew that the action of exposure could result in transmission of the human immunodeficiency virus, and consented to the action of exposure with that knowledge.

A Class B felony shall be confined for no more than twenty-five years. Sex offender registration is also required.

Key wording in the law: 

A bill amending the current law proposed by Senator McCoy (SENATE FILE 2149) was introduced on February 8 2012. 

However, it is unlikely that it will be voted upon during the current legislative year (See news report from Des Moines Register, attached below). 

The bill's progress can be tracked here.

An Act relating to the criminal transmission of the human immunodeficiency virus and providing a penalty.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1.  Section 692A.101, subsection 1, paragraph a, subparagraph (9), Code 2011, is amended by striking the subparagraph.
Sec. 2.  Section 692A.102, subsection 1, paragraph c, subparagraph (23), Code Supplement 2011, is amended by striking the subparagraph.
Sec. 3.  Section 709C.1, subsection 1, unnumbered paragraph 1, Code 2011, is amended to read as follows:

A person commits criminal transmission of the human immunodeficiency virus or attempted criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:

Sec. 4.  Section 709C.1, subsection 3, Code 2011, is amended to read as follows:
3. a.  Criminal transmission of the human immunodeficiency virus is a class “B” felony if infection with the human immunodeficiency virus occurred.
3. b.  Attempted criminal transmission of the human immunodeficiency virus is an aggravated misdemeanor if no infection with the human immunodeficiency virus occurred.

Sec. 5.  Section 709C.1, subsection 4, Code 2011, is amended by striking the subsection.

EXPLANATION
This bill relates to the criminal transmission of the human immunodeficiency virus.

The bill provides a different criminal penalty for criminal transmission of the human immunodeficiency virus and for attempted criminal transmission of the human immunodeficiency virus. Under the bill, the criminal penalty for criminal transmission of the human immunodeficiency virus remains a class “B” felony if a human immunodeficiency virus infection occurred. If no human immunodeficiency virus infection occurs, the offense is classified as attempted criminal transmission of the human immunodeficiency virus, and this offense is classified as an aggravated misdemeanor.

Current law classifies criminal transmission of the human immunodeficiency virus as a class “B” felony and specifies that it is not necessary for an infection with the human immunodeficiency virus to occur in order to be convicted of criminal transmission of the human immunodeficiency virus.

The bill strikes a provision requiring a person convicted of criminal transmission of the human immunodeficiency virus to register as a tier III sex offender.

The bill also strikes the offense from the definition of “aggravated offense” under Code chapter 692A which requires lifetime registration as a sex offender under Code section 692A.106(5).

A class “B” felony is punishable by confinement for no more than 25 years.

An aggravated misdemeanor is punishable by confinement for no more than two years and a fine of at least $625 but not more than $6,250.

 

Key Cases: 

In State v. Keene (629 N.W.2d 360, 362, Iowa 2001) an HIV-positive man was charged with criminal transmission of HIV after engaging in unprotected sexual intercourse with a female partner without disclosing his HIV status. It is not known whether he ejaculated or if the woman tested positive for HIV, 231 nor are those factors relevant in a prosecution under the statute. After pleading guilty, the defendant in Keene received a twenty-five-year prison sentence.

Following his guilty plea, the defendant argued on appeal that Iowa’s criminal transmission laws were unconstitutionally vague as applied to his case. Specifically, he argued that the language “could result in the transmission of HIV” failed to give him fair notice of what conduct was prohibited under Iowa’s HIV exposure laws. The Supreme Court of Iowa disagreed, holding that conviction under Iowa’s criminal transmission law was lawful as long as HIV transmission was possible and “any reasonably intelligent person is aware it is possible to transmit HIV during sexual intercourse, especially when it is unprotected.”

In Keene, the Supreme Court of Iowa also clarified the types of “intimate contact” that may result in prosecution, recognizing that “HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing [HIV].”

[Subsequently, another 2011 appeal that Keen received cruel and unusual punishment and that he was incompetent when he pleaded guilty and receiving ineffective counsel was dismissed.]

Another case, State v. Stevens (719 N.W.2d 547 Iowa 2006), following Keene, held that an HIV-positive individual may be prosecuted under Iowa’s criminal transmission laws if she/he engages in oral sex. In Stevens, an HIV-positive man was sentenced to twenty-five years in prison for criminal transmission of HIV when he engaged in oral sex with a 15-year-old boy and ejaculated in the boy’s mouth. He also received a ten-year sentence for sexual abuse of a child. Notably, the court in Stevens interpreted the definition of “sexual intercourse” in Keene to include oral sex, holding that “oral sex is a wellrecognized means of transmission of the HIV.”

In a different appeal the same year, State v. Musser (721 N.W.2d 734 Iowa 2006), Iowa’s Supreme Court rejected another challenge that Iowa’s criminal transmission law was unconstitutionally vague. As applied to the defendant’s case, the law gave clear warning, and the court took judicial notice, that HIV could be transmitted through sexual intercourse and such activities fell under the purview of the statute. The court found that requiring an HIV-positive person to disclose her/his HIV status was the most narrowly tailored means of achieving the goal of the statute, to limit the spread of HIV, and that such a requirement did not infringe on First Amendment rights.

The court also rejected the defendant’s claim that Iowa’s criminal transmission law is vague on its face. Musser argued that the statute, as written, would limit his freedom of association because its broad language could limit conduct such as kissing or “sweating on another while playing a game of basketball.” The court rejected this argument because such activities are not known to transmit HIV, and the statute only addresses conduct that could result in HIV transmission. Common knowledge dictated that HIV could be transmitted from contact with blood, semen, or vaginal fluid, and a separate Iowa statute defined “infectious bodily fluids” as “bodily fluids capable of transmitting HIV infection as determined by the [C]enters for [D]isease [C]ontrol and [P]revention.” This means that exposure to saliva, tears, sweat, and other bodily fluids that have not been identified by the CDC as transmitting HIV would not be a violation of this statute.

Cases excerpted from: Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011).

 

Discussion: 

In April 2009, a gay man, Nick Rhoades was sentenced to twenty-five years in prison after he failed to disclose his HIV status to a one-time sexual partner he met online.  He was also required to register as a sex offender and undergo a sex offender treatment program. Following targeted advocacy of the sentencing judge, his sentence was later reduced to five years probation and mandatory sex offender registration. 

Subsequently, Iowa's HIV-specific law, passed in 1998, was the focus of three investigative reports by journalist Lynda Waddington in the Iowa Independent.  (Articles attached below)

Since then, advocates in Iowa have succeeded in persuading lawmakers to consider revisions to Iowa's statute (see above).

Meanwhile, Mr Rhoades' case and the case of another man, Donald Bogardus, are being readied for appeal at Iowa's Supreme Court (see 'HIV law is too severe given risks, critics say', below)

Although cases and prosecutions are well documented in Iowa, there has been some confusion regarding numbers of charges versus numbers of individuals charged.

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.

(From Moon L. Critics address flaws in Iowa’s HIV criminalization law, The Daily Iowan, Feb 9 2012)

Given that there are an estimated 1,828 people living with (diagnosed) HIV in Iowa (Source: Iowa Watch), prosecutions per capita of PLHIV are an estimated 13.68 per 1000, one of the highest in the world for any single jurisdiction.

Survey respondents/Organisations working on HIV and the Law: 

Information obtained from articles attached below and:

Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011)

SERO. Launched in 2012 in response to the growing phenomenon of HIV criminalization, SERO is a non-profit initiative to combat HIV and viral related discrimination, stigma, and criminalization. It seeks to empower people with viral conditions to improve the quality of their lives and advocates for sound public health policy based on science and epidemiology, rather than ignorance and fear.

 

Further reading: 

Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011).

Recent cases can be found at: Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012.

Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/Iowa

USA Alleged exposure Gay men Prosecutions Defence lawyers US: Iowa man’s attorney asks court to dismiss HIV case Waterloo man’s attorney asks court to dismiss HIV case August 10, 2012 - See more at: http://www.hivjustice.net/site/cases/?casetype=335&country=234&from-month=-1&from-year=-1&to-month=-1&to-year=-1#sthash.3RBgg8Ti.dpuf

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

U.S. President Barack Obama has announced that all current restrictions affecting people with HIV from entering or migrating to the United States are lifted as of January 4, 2010. The final rule was published in the Federal Registry November 2, 2009. It stated: "As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration."
New instructions are being provided to panel physicians and civil surgeons who administer medical exams as for immigration purposes, but it may take time until they are all aware of the change, so residency seekers should be prepared. The revised instructions can be found at: www.cdc.gov/ncidod/dq/technica.htm
From January 4, 2010, people living with HIV can enter the U.S. like anybody else.
Guidance on the new rule is published here: http://travel.state.gov/visa/laws/telegrams/telegrams_4631.html and an HIV Travel and Immigration FAQ brochure is available for download in English and Spanish here: http://immigrationequality.org/template.php?pageid=176.
Important note for visitors under the visa waiver program (for countries where a visa is not required to travel to the USA) and are living with HIV, please note that HIV is no longer considered a communicable disease for entry purposes. When submitting the online ESTA form to clear your entry to the U.S., it is important that you do check „no“ for the question about communicable diseases. HIV is no longer considered as such by the U.S. authorities.
Customs regulations require people entering with prescription medication like antiretroviral drugs to carry a doctor’s certificate in English, stating that the drugs are required to treat a personal condition. This requirement applies to all prescription drugs.
Medication should always be carried in hand luggage, as checked luggage may be delayed or get lost. If you are carrying-on liquid medication exceeding 3 ounces / 100 ml, you must declare it at the checkpoint for inspection.For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

For updated information, please go to: http://ilga.org