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Ohio Supreme Court upholds HIV notification law
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On Oct. 26, the Ohio Supreme Court upheld a state law that makes it a crime for someone with HIV to neglect telling a partner about his or her status before engaging in sexual activity.
In a unanimous decision, the court denied an appeal by Ohio resident Orlando Batista, who is serving an 8-year prison sentence for failing to disclose his HIV status to his girlfriend. The girlfriend was subsequently infected with the virus.
Batista pleaded no contest to felonious assault but later appealed his conviction in the case.
Batista’s attorney argued that the law violates the First Amendment right to free speech and the Equal Protection clause of the Ohio and United States constitutions.
According to a summary of litigation included in the state Supreme Court’s ruling, Batista claimed that the law “is not narrowly tailored to further a compelling government interest: [that] it does not prevent the spread of HIV, it compels speech even when the sexual conduct or bodily fluids cannot transmit HIV and its existence is not necessary to prosecute HIV-positive individuals for exposing people to HIV.”
Batista also argued that advances in HIV treatment have made the life spans of individuals with the virus comparable to those of people not infected and that HIV “is not invariably fatal.”
The court, however, ruled that the law regulates a person’s conduct, not speech. Making an act illegal is not a violation of First Amendment rights simply because it compels some kind of speech, the judges wrote.
The court also cited a previous ruling upholding a similar HIV partner notification law in Missouri that cited risks for infection “through contact with blood, semen or vaginal secretions in the course of oral, anal or vaginal sexual intercourse.”
The ruling could have implications for an ongoing case also rooted in the Ohio law. Ron J. Murdock, 52, is charged with murder under the statute for not telling his girlfriend he had HIV. The girlfriend, 51-year-old Kimberly Klempner, died from AIDS in February. – by Joe Green
Reference:
Supreme Court of Ohio. State v. Batista, Slip Opinion No. 2017-Ohio-8304. http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-8304.pdf. Accessed October 27, 2017.
Perspective
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Paul A. Volberding, MD
We can all appreciate the desire to avoid HIV transmission. Even though treatment has dramatically improved, no one would choose to carry this virus. But even so, we are concerned that HIV be treated as a medical disease and not weaponized as a criminal offense.
We have clearly failed to eliminate the stigma of HIV infection, a major cause in some infected persons not seeking the treatment that very effectively blocks transmission. These rare cases deserve a careful and measured response, not the blunt force of criminal charges.
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