USA - Ohio

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

Ohio
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 33
Number of people convicted: 
Min. 19
Applicable law: 

Ohio Rev. Code Ann. §2903

No person, with knowledge that the person has tested positive for HIV, shall knowingly do any of the following: (1) Engage in sexual conduct with another person without disclosing his or her HIV positive status to the other person prior to engaging in the sexual conduct, (2) Engage in sexual conduct with a person whom the offender knows or has reasonable cause to believe lacks the mental capacity to appreciate the significance of the knowledge that the offender is HIV positive, or (3) Engage in sexual conduct with a person under 18 who is not the spouse of the offender. Violation of this provision is a felony of the second degree. If the victim is a peace officer or an investigator of the bureau of criminal identification and investigation and suffers serious physical harm as a result of the offense, it is a felony in the first degree.

("Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; it does not include the insertion of an instrument, apparatus, or other object that is not a part of the body into the vaginal or anal opening of another, unless the offender knew at the time of the insertion that the instrument, apparatus, or other object carried the offender’s bodily fluid.)

Ohio Rev. Code Ann. §§2907.24, 2907.25

No person, with knowledge that the person has tested positive for HIV, shall engage in, or solicit another person to engage in, sexual activity for hire

Ohio Rev. Code Ann. §2907.241

A person who commits “loitering to engage in prostitution” commits a fifth degree felony if the person commits the offense with the knowledge that he or she has tested positive for HIV.

Ohio Rev. Code Ann. §2921.38

No person, with knowledge that the person is HIV positive and with intent to harass, annoy, threaten, or alarm another person, shall cause or attempt to cause the other person to come into contact with blood, semen, urine, feces, or another bodily substance by throwing the bodily substance at the other person, by expelling it upon the other person, or in any other manner.

Ohio Rev. Code Ann. §2927.13

No person, with knowledge that he or she is HIV positive, shall sell or donate his/her blood, plasma, or a product of his/her blood, if he or she knows or should know the blood, plasma, or product of his/her blood is being accepted for the purpose of transfusion to another individual.

Key wording in the law: 

Knowingly…engage in sexual conduct…without disclos[ure].

Key Cases: 

In State v. Gonzalez (Ohio Ct. App. 2003) the defendant was convicted of two counts of felonious assault for failing to tell his sexual partner that he was HIV-positive. He was sentenced to sixteen years imprisonment and was required to register as a sex offender. The complainant later tested positive for HIV. At trial, there were numerous discrepancies in the parties’ testimony, including whether or not Gonzalez told the complainant that he was HIV-positive prior to their sexual relationship. Gonzalez testified that the complainant asked him before they began their sexual relationship whether the rumors about him being HIV-positive were true and he confirmed that he had tested positive for HIV and insisted that they use condoms every time they had sex. The complainant, however, testified that when she confronted Gonzalez he denied his HIV status and claimed that they only used a condom once. In addition to the testimony of the defendant and complainant, the defendant had an ex-girlfriend testify that he had disclosed his HIV status to her and always insisted on using condoms.

On appeal, Gonzalez argued, among other issues, that the statute was unconstitutionally vague. He asserted that the statute did not provide enough information on what constitutes “disclosure,” whether such disclosure had to be made prior to each sexual contact with the same person, or whether disclosure needed to be in writing. To survive a void for vagueness challenge the statute must be written so that a person of common intelligence can determine what conduct is prohibited and the statute must provide sufficient standards to prevent arbitrary and discriminatory enforcement. The court rejected the defendant’s void for vagueness argument because the ordinary meaning of “disclose” is used in every day speech and therefore cannot be vague. The court reasoned that if an HIV-positive person disclosed her/his status once to a sexual partner then this would negate guilt for any subsequent contact the person had with that partner. Verbal disclosure was also held to be sufficient as the court reasoned it was disingenuous to suggest that written, signed, and notarized disclosure would be necessary to avoid prosecution. The court also held that thought there was a violation of the state’s HIV confidentiality statutes when the prosecution failed to obtain court authorization for Gonzalez’s HIV status, this was deemed “harmless error” because of the other evidence of the defendant’s HIV status.

In 2006, an HIV-positive man was sentenced to two years imprisonment for failing to tell his sexual partner that he was HIV-positive. A year later he was released and put on community control for five years. As part of his community control, the defendant could “have no sexual conduct with any individual without prior approval of the court.” During his community control, the defendant engaged in two sexual relationships, one with a man and one with a woman, both of whom knew of his HIV status, but only one of them (the woman) had received court approval. In the trial regarding whether the defendant had violated his community control sanctions by engaging in sexual relationship with the man without court approval the trial court found the defendant guilty and sentence him to two years imprisonment.

On appeal (State v. Eversole, Ohio Ct. App. 2009) the defendant argued that he did not violate the court’s orders because (1) he and the man never had sex; (2) even if they had a sexual relationship the man knew about the defendant’s HIV status; and (3) that it was an unconstitutional invasion of his right to privacy to require court approval for potential sex partners. The Ohio Court of Appeals was “concerned” about the breadth of the community control requiring court approval for sexual partners but found that the defendant failed to timely appeal the right to privacy issue and would therefore not address it. The court overruled the defendant’s other issues on appeal, finding that the trial court was correct in monitoring the defendant’s activities to “protect the public from the blatant disregard [the defendant] demonstrated when he failed to disclose his condition to the initial victim of his offense.” The court held that the defendant was in violation for failing to tell the trial court about his sexual relationship with man despite the fact that the man had full knowledge of defendant’s HIV status.

In State v. McPherson (Ohio Ct. App. 2001), the appellant was found guilty of solicitation of prostitution while HIV-positive and was sentenced to three years imprisonment and forced to register as a sex offender. McPherson was charged when he approached an undercover officer, who knew that the McPherson was HIV-positive and had been previously arrested for solicitation. The two engaged in conversation and when McPherson agreed to perform a sexual act for $10 he was arrested. On appeal, the Ohio Court of Appeals addressed whether there was sufficient evidence to convict McPherson of solicitation, if McPherson knew of his HIV-positive status, and whether the trial court correctly forced him to register as a sex offender. The court found that because the defendant initiated the conversation with the undercover officer and was the first person to discuss sex and money there was enough evidence to successfully prosecute him for solicitation despite the fact that no sexual act or exchange of money had occurred. On the question of whether the defendant knew his HIV-positive status, the court concluded that the medical records noting the defendant’s status and the police department’s vice squad’s knowledge of the defendant’s status was sufficient to prove that McPherson knew he was HIV-positive. The court reversed the finding that the defendant had to register as a “sex offender” because solicitation is not considered a sexually oriented offense.

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).

In July 2008, a news report says that an Ohio man, already in prison for six years after pleading guilty to HIV exposure without disclosure was to be prosecuted in another Ohio county for the same 'crime', where he may face an additional 88 years (up to eight years for each of the eleven times it is alleged that he has unprotected oral or vaginal sex with the complainant without disclosing his HIV status).

Discussion: 

Between May 2009 and September 2011, a total of eleven cases were reported in the media, involving non-disclosure prior to sex (5 ), sex work whilst HIV-positive (3), spitting whilst HIV-positive (2), and biting whilst HIV-positive (1).

These media reports suggest that HIV-related prosecutions have be occurring more frequently than in most other US states in the past few years, and also suggest that our total figures of arrests and prosecutions in Ohio may be significant underestimates.

Given that there are an estimated 17,109 people living with (diagnosed) HIV in Ohio (Source: Ohio Department of Health,  prosecutions per capita of PLHIV are estimated to be a minimum of 1.93 per 1000.

Survey respondents/Organisations working on HIV and the Law: 

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)

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.

USA Alleged exposure Heterosexual men Prosecutions Ohio man pleads not guilty to HIV non-disclosure charges Attorney asks for evidence to be suppressed in felonious assault case allegedly involving HIV October 3, 2012

See  more at : http://www.hivjustice.net/storify/attorney-asks-for-evidence-to-be-suppressed-in-felonious-assault-case-allegedly-involving-hiv/

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