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The laws “place all of the responsibility on one party: the party that’s HIV-positive,” said Scott Schoettes, a lawyer who supervises HIV litigation for Lambda Legal, a national gay-rights advocacy group.
According to the federal Centers for Disease Control and Prevention, spitting and scratching cannot transmit HIV, and transmission through biting “is very rare and involves very specific circumstances” — namely, “severe trauma with extensive tissue damage and the presence of blood.” Many law enforcement officials and legislators defend these laws, saying they deter people from spreading the virus and set a standard for disclosure and precautions in an ongoing epidemic.
“One thing that makes this case difficult is you don’t look like our usual criminals,” Harris said. But you created a situation that was just as dangerous as anyone who did that.” The judge meted out Rhoades’ sentence: 25 years in prison.
“Often times for the court it is easy to tell when someone is dangerous. His crime: having sex without first disclosing he had HIV.
A national group of AIDS public health officials later submitted a brief estimating that the odds of Rhoades infecting Plendl were “likely zero or near zero.” After his lawyers petitioned the court, Rhoades’ prison sentence was changed to five years’ probation.
But for the rest of his life — he is 39 — he will remain registered as an aggravated sex offender who cannot be alone with anyone under the age of 14, not even his nieces and nephews. Over the last decade, there have been at least 541 cases in which people were convicted of, or pleaded guilty to, criminal charges for not disclosing that they were HIV-positive, according to a Pro Publica analysis of records from 19 states. Defendants in these cases were often sentenced to years — sometimes decades — in prison, even when they used a condom or took other precautions against infecting their partners.
That’s not a surprise, because Rhoades used a condom.
And medical records show he was taking antiviral drugs that suppressed his HIV, making transmission extremely unlikely.
Lab results and a bottle of pills found in the Rhoades’ refrigerator confirmed the detectives’ suspicions: Nick Rhoades was HIV-positive.
Almost a year later, in a Black Hawk County courtroom, Judge Bradley Harris peered down at Rhoades from his bench.
The national tally is surely higher, because at least 35 states have laws that specifically criminalize exposing another person to HIV. In 60 cases for which extensive documentation could be obtained, Pro Publica found just four involving complainants who actually became infected with HIV.
Even in such cases, it can be hard to prove who transmitted the virus without genetic tests matching the accused’s HIV strain to their accuser’s.
The laws, these experts say, could exacerbate this problem: If people can be imprisoned for knowingly exposing others to HIV, their best defense may be ignorance.