WATERLOO, Iowa --- Defense attorneys are challenging a law designed to curtail the spread of the human immunodeficiency virus.
Iowa Code makes it illegal for a person infected with HIV to have intimate contact that could transmit the virus to another without first telling the partner about his or her HIV status.
Punishment upon conviction is up to 25 years in prison regardless of whether the partner acquired the disease.
In two criminal cases in Black Hawk County, defense attorneys are claiming recent advances in treatment and a new understanding of HIV make the current law --- which was put on the books in 1998 --- outdated. Contracting HIV through sexual contact isn't as easy as once assumed, and the virus itself is no longer seen as a death sentence, defense attorneys argued.
Public Defender Aaron Hawbaker, in records asking the court to drop charges against Donald Bogardus on constitutional grounds, referred to a Danish study that showed young people infected with HIV could expect to live into their 60s with proper medication. Non-infected people in the study lived into their 70s.
Fighting the HIV transmission conviction of Nicholas Rhoades, defense attorneys Charles Glazebrook and Dan Johnston of Des Moines said the amount of virus in their client at the time of the alleged crime was so low that it was unlikely he would have been able to pass on the ailment.
Opponents of the law, of which 34 states have in some form, said it actually persuades people to not get tested for the virus. If a person doesn't know they have HIV, they can't break the law by neglecting to tell their partner.
Criminalization contributes to the negative public perception of the disease.
Such laws encourage "a view of individuals with HIV as toxic, irresponsible and predatory," said Beirne Roose-Snyder, an attorney with the Center for HIV Policy and Law in New York. The center's Positive Justice Project, which recommends people with HIV have their partners sign a disclosure acknowledgement, is working to end HIV prosecutions.
Iowa's law is one of the harshest in the nation when it comes to sentencing, said Glazebrook, who points out that the 25-year sentence is on par with the punishment for armed robbery.
"This is treated in a very serious way in Iowa," Glazebrook said.
In the first 15 years, about 20 people have been convicted under Iowa's statute, Glazebrook estimates. He said some were charged more than once because of other partners, so the state's prosecutions number into the 30s.
He said Black Hawk County is one of the more active counties in the state when it comes to prosecuting HIV transmission cases.
A victim's view
Adam Plendl believes there is a good reason to require disclosure of HIV status to prospective sex partners. He is the victim in Rhoades' case and underwent months of testing before ultimately learning he didn't contract the virus.
"That doesn't diminish the fact that its still a life-changing, non-curable disease ... The mental anguish that someone goes through in this kind of ordeal is indescribable by words," Plendl said.
Plendl declined to talk about the specifics of the case.
He said he supports efforts to de-stigmatize HIV, but he said the decriminalization movement switches attention away from the real victims and makes the perpetrators appear to be victims.
"Someone has to be accountable for their actions, and that is something that is a life-altering virus, and it has an impact on the physical health and the mental health," he said.
The U.S. Centers for Disease Control estimate that about 50,000 Americans become infected with HIV each year.
Rhoades met Plendl online, and the two had sex in Cedar Falls in 2008 allegedly without Rhoades disclosing that he was HIV positive, court records state.
Rhoades pleaded guilty and was sentenced to up to 25 years in prison, and the sentence was later changed to five years' probation.
On challenging the conviction in district court, Rhoades argued that his original attorney wasn't effective because he failed to challenge the basis of the charge and failed to investigate mental health defenses.
During a hearing, Dr. Jeffery Meier, a physician with the University of Iowa, testified that HIV treatment has progressed considerably in the past 15 years, and that treatments along with safe sex practices inhibit the ability to pass along the virus, according to court records. He said some of the Iowa laws are outdated given advances in treatment, records state.
In turning down the argument in December, District Court Judge David Staudt ruled that while Rhoades' viral load was extremely low, there was evidence that the intimate contact could have transmitted the virus.
Rhoades, who currently lives in Texas, has appealed the decision to the Iowa Supreme Court.
Iowa's HIV transmission law was enacted in 1998 on the heels of an East Coast case where a New York man was found to have infected a number of women through sexual contact.
Authorities claim Bogardus was diagnosed with HIV in 2007 when he lived in Atlanta, Ga. He is accused of having unprotected sex with another man three times in Black Hawk County between August and October 2009 without disclosing his HIV status.
In an attempt to head off the charge, Hawbaker is asking the district court to dismiss the case.
He claims the law violates Bogardus' rights against cruel and unusual punishment and his First Amendment Right of freedom of speech. The First Amendment not only protects speech, it protects the absence of speech, in essence the right to remain silent.
Under Hawbaker's argument, the duty to disclose HIV status is unconstitutional because it requires speech, mandating that people with HIV tell their prospective partners.
The theory isn't new. The Iowa Supreme Court took up the same issue in a 2006 case out of Johnson County. The high court found the transmission law did infringe on the First Amendment because it compelled speech,
But the court went on to rule that it was a reasonable violation when weighed against the government's interest in public safety.
"Considering the ease of transmitting AIDS and HIV through sexual penetration and the absence of any 'cure,' the state's interest in protecting the public health, safety and general welfare of its citizenry becomes extremely significant," the Supreme Court's 2006 ruling said.
The Iowa Supreme Court made a similar ruling that weighed the public safety issue against a right to privacy argument in the Johnson County case.
Six years later, Bogardus' defense is trying to show that the balance has tipped.
"Transmission rates are drastically reduced with HAART (highly active antiretroviral therapy) measures, and life expectancy has increased to nearly that of a non-infected adult," Hawbaker wrote in his motion. "Due to significant advancements in medical care, the compelling state interest previously assumed by the court is gone, and the punishment required is grossly disproportional to the crime."
A hearing on the matter is slated for March.