- Associated Press - Monday, March 10, 2014

DES MOINES, Iowa (AP) - The Iowa Supreme Court heard arguments Monday on whether it should uphold the conviction of a man with HIV who was sentenced to 25 years in prison for not telling a partner he carried the virus when they had sex.

The court agreed in January to hear Nick Rhoades‘ case after the Iowa Court of Appeals upheld his conviction in October. That court concluded Rhoades had violated the state’s HIV transmission law because he didn’t disclose that he was infected, even though his partner did not acquire the virus and their 2008 encounter posed a low risk of transmission.

Rhoades‘ attorney Christopher Clark, a Chicago attorney for the gay rights advocacy group Lambda Legal, said his client’s use of a condom shows Rhoades did not intend to expose his partner to a bodily fluid that could have transmitted HIV.

In addition, he argued that Rhoades‘ treatment for HIV left him with very a very low level of the virus in his blood, which means transmission was nearly impossible.

“Under the facts of this case there was absolutely no risk that HIV would be transmitted and a prosecution under Iowa’s HIV transmission law was completely inappropriate, and we hope that the Supreme Court will agree,” he said in an interview after the court session.

Iowa passed a law in 1998 making it a felony for someone with HIV to engage in intimate contact with another person without disclosing it. That is defined as the 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 HIV. The law does not specify that the other party must become infected for there to be a crime.

Clark argued that Rhoades, who lived in Plainfield when he was charged and now lives near Des Moines, did not intentionally expose the other man to bodily fluids in a way that could have transmitted HIV because he practiced safe sex by using a condom.

Assistant Attorney General Kevin Cmelik argued that because Rhoades knew he had the virus and had sex in a way that was possible to transmit HIV means he was properly prosecuted for the crime and the conviction should be upheld.

“The experts testified it is possible the virus can be transmitted with a low viral load and with the type of sex that was practiced here,” he argued before the court. “It is less likely, everyone agrees it is less likely, but the question is of the possibility, not the likelihood.”

Rhoades also says his conviction should be thrown out because his defense attorney did not fully understand the law and should have never advised him to plead guilty.

Rhoades met and had sex with a man he had chatted with on the Internet. He eventually pleaded guilty to criminally transmitting HIV, a class B felony. A judge sentenced him to the maximum 25 years in prison, but later reconsidered his sentence and freed Rhoades after about 18 months behind bars. Rhoades is on probation and required to register for life as a sex offender.

Lambda Legal says 39 states have HIV-specific criminal statutes and many rely on outdated fears about HIV and the risk of transmission.

“There does need to be a reform of these statues here in Iowa and across the country to better reflect our current understanding of HIV and its transmission,” Clark said.

Cmelik argued that if the language of the law no longer fits current scientific understanding of the risk of HIV infection then it needs to be addressed by the Legislature, not reinterpreted by the court.

“I would say we need to go back the Legislature and ask them to rewrite it,” he said.

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