You still must disclose HIV before sex

Ruling it did not violate free speech rights, the Ohio Supreme Court upheld on Thursday the state’s HIV disclosure law, which makes it a crime for persons with the virus to engage in sexual conduct without notifying a partner.

The state HIV disclosure law regulates conduct — not speech — and thus does not violate the free speech clauses in the U.S. and Ohio constitutions, the court ruled in a majority opinion written by Justice Terrence O’Donnell.

And because the law is “rationally related” to the state’s interest in preventing the spread of HIV to sex partners not aware of the risk, it does not violate constitutional guarantees of equal protection, the court found.

Three justices voted to uphold the law while also differing from the majority in finding it did regulate speech. A concurring opinion written by Justice Patrick DeWine said the law is constitutional because it is narrowly written to achieve a compelling governmental interest in the least-restrictive manner.

Advocates for Ohio’s 23,000 HIV patients and the gay community said the state law is outdated and ignores “the scientific advancements that have transformed the disease and those who are diagnosed.”

“It makes no sense

“It makes no sense — medically or legally — to single out HIV for criminalization. We cannot allow the fears and confusion of the past to guide our current policy on HIV.”

—Elizabeth Bonham, staff attorney at the ACLU of Ohio

— medically or legally — to single out HIV for criminalization,” said Elizabeth Bonham, staff attorney at the American Civil Liberties Union of Ohio. “We cannot allow the fears and confusion of the past to guide our current policy on HIV.”

The matter could still be appealed to the U.S. Supreme Court.

The ruling came out of a case in the Cincinnati area and upheld a ruling by the First District Court of Appeals that affirmed the conviction of a man for failing to notify a woman he was HIV positive prior to having sex with her.

Orlando Batista had appealed his conviction, saying the disclosure law illegally compelled him to speak about his health condition. His lawyers also said there was no basis for mandating HIV disclosure when disclosure of other diseases such as hepatitis C is not required, violating equal protection.

Batista was diagnosed with HIV, the precursor to AIDS, while he was imprisoned in 2001. When he was released from prison in 2013, he began having sex with a woman without telling her he was HIV positive. She learned of his condition from his ex-sisterin-law and notified police.

He pleaded no contest to felonious assault and was sentenced to eight years in prison, leading to his appeals.

O’Donnell’s majority opinion noted “that there have been advancements in the treatment of individuals with HIV that may have reduced the transmission and mortality rates associated with the disease. However, we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational.”

In his concurring opinion, DeWine wrote that Batista had argued that due to medical advances, HIV and AIDS no longer are a death sentence.

“But the question is who gets to evaluate that risk: Should the HIV-positive individual get to assess that risk for his sexual partner or should the partner get to make her own decision? Fair to say that most — if not all — people would insist on the right to make that decision for themselves.”

The ACLU of Ohio, the Center for HIV Law and Policy, the Center for Constitutional Rights and others had argued against Ohio’s statute in friend-of-the-court filings.

“The law brings government-mandated disclosures into the bedroom while doing little to effectively limit the incidence of HIV/AIDS in Ohio,” one opposition filing stated. “Through this law, the state of Ohio makes itself a partner in sexual intimacy, commanding individuals who are HIV positive to disclose deeply private medical information under threat of a lengthy prison sentence. The law compels disclosure of HIV-positive status even when the risk of transmitting the virus is negligible or non-existent.”

—Justice Patrick DeWine