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Iowa courts stand firm on HIV transmission law
In a previous report, The Iowa Independent detailed the criminal case of a Bremer County man who was charged and convicted to 25 years in prison under the state’s criminal HIV transmission law.
Although this case was by no means the first to be prosecuted under provisions of the statute some consider archaic, its details have provided a springboard for Iowa’s launch into a larger national debate regarding whether criminal prosecutions for diseases are appropriate or constitutional.
In the 11 years since Iowa began prosecuting behavior that could result in transmission of the HIV virus, a total of 36 individuals have faced charges. Of those, 24 have been convicted and have received sentences ranging from a few months on probation to several decades in prison.
There are currently 12 individuals — 10 men and 2 women — listed with Iowa Department of Corrections as in the state’s penal system due, at least in part, to convictions for criminal transmission of HIV, classified among the second-most serious felonies that can be committed in the state.
At least three of these convictions have made their way through the appeals process to the Iowa Supreme Court. In each instance, the state’s highest court has upheld the constitutionality of the law and affirmed the lower court’s sentencing decision.
One such appeal was launched by Justin Keene, a Dubuque County man accused of having unprotected sex in 1998 with his girlfriend, a mentally deficient McDonald’s worker. Keene, who is currently serving a 25-year sentence at the Iowa State Penitentiary, did not disclose to the woman that he was HIV-positive.
Although Keene’s attorneys argued that the law was too vaguely written to include any activities that “could” transmit the virus — the specific example used was the sharing of eating utensils — the court ruled that someone who had so obviously engaged in an activity commonly known to spread the virus could not reasonably make such a challenge.
Stating that the exact circumstance regarding the intimate contact between the two consenting adults did not matter, the court added that “any reasonably intelligent person is aware it is possible to transmit HIV during sexual intercourse, especially when it is unprotected.”
Disclosure and stigma
Rhea Van Brocklin, community relations director for the AIDS Project of Central Iowa, said transmission laws, along with overall health issues, are the primary reasons her organization counsels newly diagnosed individuals on disclosing their status.
“A lot of people, because of the stigma surrounding this disease, still believe it is a death sentence, but that is not necessarily the case,” she said. “So, for people who test positive, a lot of support is needed to help wade through issues like how to get a doctor, how to tell loved ones, how to start medication, and employment concerns. Sometimes disclosure might be the most pressing question, and sometimes it may not.
“Our responsibility as an AIDS service organization is to make sure they understand the HIV transmission law and help support them through that process.”
Some groups pressing for transmission laws to be revisited have argued that the added concern of possible criminal prosecution can add to the already imposing stigma attached to the virus and hamper testing efforts, but Van Brocklin says that such laws do not appear to be a deterrent to testing in Iowa.
“It could be hearsay within the community that people are afraid to get tested because of the law, but our agency specifically hasn’t seen that,” she said. “In fact, we doubled our testing numbers in 2008. We had a goal to test between 400 and 500 high-risk individuals and we tested about 800 last year. What we see is that people are taking HIV seriously and they want to know their status.”
Although the number of people living with HIV/AIDS in Iowa remains relatively low when compared to other states — as of Dec. 31, 2008, there were 2,045 such people in the state — Iowa has seen increasing numbers each year since statistics have been kept. In addition, the state estimates that there are an additional 500 to 625 individuals in the state who have the virus but are unaware of their status. That means that the AIDS Project and similar service groups need to work doubly hard to both educate the public and provide services to the afflicted.
“While the law may not take into account how different factors can impact probability of transmission of the virus — condom use, sexual position, intimate act, viral load, etc. — the Project does address those issues with individuals during counseling,” Van Brocklin said.
“We take a harm-reduction methodology here at the AIDS Project so we truly believe that while abstinence is a sure-fire way not to get infected with HIV, not everyone is ready for abstinence. We try to determine what each individual is willing to do to make him or herself safer in the future.”
Given that the mission of groups such as the AIDS Project are to inform and support, organizers and staff have little, if any, interest in enacting or even discussing law changes. Their role is to provide a sustainable framework within the parameters that already exist.
Ed Fallon, a former Iowa representative that supported the criminal transmission law when it passed in 1998, believes that it might be time for the state to revisit criminal transmission laws.
“It seems to me that since it is now 11, almost 12, years later, it wouldn’t be bad time to take a look at it again,” said Fallon, who admits he had some reservations before casting his affirmative vote for the bill. “I can think of so many bills we worked on that in the following year, or a few years later, we were rewriting or revisiting. … So, yes, surely the are some tweaks or changes that the legislature could consider relevant to this law, especially with all the new knowledge we have of the disease.”
There was at least one other major and peripherally related bill passed by the Iowa Legislature during the 1998 session: A ban on same-sex marriage.
“I know during that discussion that were a lot of references to ‘the homosexual lifestyle,’ and I know to a lot of people that meant promiscuity, deviant sexual behavior, exposing oneself to this disease and an inclination to spread this disease,” said Fallon, who was one of only 11 legislators who voted in February 1998 against the same-sex marriage ban deemed unconstitutional just this year by the Iowa Supreme Court.
“Certainly, in terms of that conversation, AIDS was a ‘gay disease,’ and we had to crack down on the lifestyle that helped spread the disease. So, there may have been a connection [between criminal transmission and same-sex marriage], but I honestly can’t recall if those types of sentiments continued into this debate.”