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Considering changes to Iowa’s HIV transmission law may make sense, but hesitation persists
An Iowa man, whose only previous encounter with the law was a 2006 operating-while-intoxicated conviction, was sentenced to the maximum allowed by state law for failing to disclose to a one-time intimate partner that he was HIV-positive. The case, which has not resulted in the one-time partner actually contracting HIV, has been used as evidence by some who say it’s time that state criminal transmission laws should be re-evaluated.
Iowa, however, isn’t a state with a high percentage of people living with HIV, the virus that causes AIDS. Prosecutions related to this particular law are often highly publicized as much for their uniqueness as for a public’s need to know. In addition, of the statute’s 24 convictions since its inception, three have been appealed and subsequently affirmed by the Iowa Supreme Court.
Ed Fallon, a member of the Iowa legislature during the 1998 session when the HIV transmission law was nearly unanimously passed, said he voted in favor despite having some reservations at the time. Because more than a decade has passed, he can’t remember specific items of contention that may have been brought up during legislative debate, but he has a general sense of the federal government requiring such a law if the state wanted to access monies for HIV- and AIDS-related care and education.
Fallon also isn’t sure if often spirited debate surrounding the ban on same-sex marriage, passed earlier that same session, influenced debate of the criminal transmission law.
Opening a door to unintended consequences
Bob Rigg, an academic member of a legislative study committee charged with reorganizing the criminal code, believes members of the group are likely be willing to address issues surrounding this statute and others during the course of their research. That being said, he also wants advocates to understand that “once the flood gate is opened, it can’t be closed.”
“There is often this notion of ‘Boy, we are going to change it and we are going to make it all better,’ but sometimes when you open that door [you don't get the results you intended],” said Rigg, who worked as a public defender in Polk County until 1995 when he became director of a criminal defense program he developed at Drake University.
“Keep in mind that when you are talking about a legislature, a lot of them are from rural areas. They are conservative. They have notions about how things work and how they don’t work. Their understanding may be absolutely perfect, but their clarity on some other things might not be. And, you are asking these members to weigh in on a criminal act that you’re going to turn into a crime and punish someone for doing. To me, that is a very dangerous thing to do unless you know exactly where you are going with it and exactly what’s going to happen with it. … There’s no way to stop it, and there is no way to stop the amendments that would come from either one political party or the other.”
Rigg’s personal preference, because the political process can be so unpredictable, is to be extremely thoughtful when considering criminal code changes.
“When people start playing around with the criminal code or they start saying that we should amend our Constitution, I’m like, ‘No, we shouldn’t.’ I err on the side of caution,” he said. “If you think what you’ve got is bad, be careful. You just might end up with something even worse.”
Although he is familiar with and has written about Iowa’s criminal transmission of HIV law, he says he still doesn’t know enough about it to determine if it is effective policy.
“The worst policy in the world is made on an anecdotal basis,” he said. “That is, when you don’t like the result of one case out of 1,000, and you attempt to change policy to fix that one result. What happens is that you end up making the other 999 worse. That’s the worst way to make policy, and the worst way to get legislation through.”
A thorough evaluation of the transmission law, according to Rigg, would be an analysis of each case that has been prosecuted.
“You have to look at the Department of Corrections because although people have been sentence, you want to know exactly how much time they’ve served,” he said. “Just because a defendant is sentenced to 25 [years], doesn’t mean he or she is going to serve 25. Some of these individuals could be paroled in as little as two.”
While state intervention to reduce prison sentences may not be an intended consequence of the initial legislation, Rigg argues that it can have “a moderating effect” on an otherwise extreme sentence.
“It is the judge’s job to sentence them. It is the DOC’s job to evaluate them for release,” he said.
Because he hasn’t done an extensive study on the practical impacts of this particular statute, which is not currently on the committee’s radar, Rigg indicated he didn’t feel comfortable voicing an opinion as to its effectiveness.
“Is this statute something that should be discussed? Yes,” he said. “I think all laws should be evaluated periodically to see if they are accomplishing the intended goals of the legislature. Matter-of-fact, now that you called me I might bring this statute up within the subcommittee and ask what is going on with it.”
Yet even if Rigg and the rest of the committee decide to research this or other criminal statutes, such review is not likely to be quick. The last major revision of the criminal code took place in 1978, a process that began, according to Rigg, during the 1960s.