Last Thursday an Iowa appellate court affirmed a jury verdict convicting an HIV+ man in Iowa for the criminal transmission of HIV to his girlfriend.  At issue was a technical question of whether the jury had been properly charged on the question of “reasonable doubt.”  Underlying questions about the wisdom or constitutionality of statutes criminalizing HIV transmission were not before the court.

According the Iowa court’s decision, these are the facts:

Tabor was diagnosed with HIV in 1999. In February 2006, Tabor met K.R. According to K.R., Tabor did not tell her he had HIV, and over the next three years they had a relationship where they engaged in unprotected sex. Tabor had ongoing health issues such as lung problems and skin rashes, but K.R. denies she was ever told of the underlying cause of his medical problems. On April 27, 2009, K.R. met with a police officer on another matter. The officer told K.R. that Tabor was HIV positive. K.R. was very shocked and upset. She was subsequently tested and discovered she had contracted HIV.

Under Iowa criminal law, “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.”  “Criminal transmission” does not require actual infection of the person with whom the HIV+ person has “intimate contact,” but rather the statute criminalizes “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.”  Could result in transmission of HIV.  Conviction under this section is a class “B” felony for which a person may be sentenced up to 25 years in prison.

Surely K.R.’s contraction of HIV is a bad thing.  And surely Tabor should have told her that he was HIV positive.  This case raises, however, two important and difficult questions:

1. whether the “wrong” here is one best addressed by criminal law, and

2. whether a person who agrees to unprotected sexual intercourse bears any responsibility for having failed to take responsibility for their own health and safety.

The first issue – the proper role of criminal law in addressing HIV transmission – is an issue about which smart public health and other empirical research concludes that criminal sanctions in a context such as this tend to undermine public health efforts designed to encourage both testing and disclosure to sex partners of one’s HIV status.  The Center for HIV Law & Policy has issue a comprehensive report on the implications of the criminalization of HIV transmission: Ending and Defending Against HIV Criminalization: State and Federal Laws and Prosecutions.  It is well worth reading.

On the second issue, the Iowa criminal law portrays Mr. Tabor as a villain and K.R. as a victim – completely absolving her, or anyone exposed to HIV whether through unprotected sex or through a spit, a bite, a cut, from any responsibility to take precautions to protect themselves.  Sexual health teaching is clear that sex without condoms is risky business, and to some degree – some degree – one bears the risk of exposure to a range of sexually transmitted diseases, not to mention pregnancy if you’re a woman, if you have sexual intercourse without using a condom.

Donald Baxter

Consider the situation of fellow Iowan Donald Baxter who contracted HIV from his lover.   While he was angry about it, he holds the view that “He (Baxter’s lover) may have known and he may just have not wanted to tell me.  Ultimately … it was my responsibility. I mean, this person did not give me HIV. I got it from him. I got it by the decisions that I made not to be safe or to be as safe as I could have been.”

Ironically, rather than calling the police to prosecute his lover for “criminal trassmission of HIV,” Baxter was prosecuted and convicted under Iowa’s criminal law for biting another man during a bicycle-vehicle traffic dispute.  According to the local paper, “This guy was poking me in the face. One of his jabs went into my mouth and I bit down hard,” Baxter said. “I didn’t even think about it. I wasn’t thinking that I was HIV positive and that I shouldn’t be doing it. I was just thinking that this guy just shoved his f***ing finger in my mouth.”

Given the level of opprobrium with which HIV+ people are held in Iowa, Butler concluded that Iowa law makes it difficult for an HIV+ person who initiates a confrontation to later claim that he/she was acting in self-defense. “If you have HIV, you lose your right to self-defense.”

While it may seem understandable to many to want to judge and punish a person who “knowingly” exposes another person to HIV, the complexity of the issue, both as a matter of criminal law and as a matter of public health policy, suggests that we check the urge to unleash the burning torch crowd and consider the larger implications of what it means to be exposed to risk.

Thanks to the Center for HIV Law & Policy for altering us to this new opinion.

13 comments

  1. New Blog Post: Iowa Appellate Court Affirms Conviction for "Criminal Transmission of HIV" http://wp.me/ploC4-RC

  2. Gender & Sexuality Law Blog » Blog Archive » Iowa Appellate Court …: On April 27, 2009, K.R. met with a police… http://bit.ly/fQDRVw

  3. Gender & Sexuality Law Blog » Blog Archive » Iowa Appellate Court …: On April 27, 2009, K.R. met with a police… http://bit.ly/fQDRVw

  4. Gender & Sexuality Law Blog » Blog Archive » Iowa Appellate Court …: On April 27, 2009, K.R. met with a police… http://bit.ly/fQDRVw

  5. The Iowa law of criminal transmission of Hiv sentence of 25 years is excussive. I currently have a post conviction regarding that issue. Please follow me on twitter or look up my blog on criminal transmission of Hiv, Iowa law, my name is Justin Auman Keene Thanks

  6. Regarding Iowa’s Criminal Transmission of Hiv law, I believe the law is vague. Other states carry lesser time for it, in other states.

  7. Let’s get a group together and lobby against the Iowa law for criminial Transmission of Hiv, the sentence is cruel and unusual punishment, illinois which has similar law language to it, carries alot lesser time for the same charge.

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