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Man with HIV calls Iowa’s transmission law ‘a sledgehammer looking for a thumbtack’
IOWA CITY — Sitting across a kitchen table from Donald Baxter, it’s easy to see that he is one of those people who would be described as being comfortable in his own skin. He laughs easily, both at life and at himself. While he describes himself as opinionated, he’s quick to credit his time as a “southern liberal” for the development of the trait. He’s one of those people who wants to make a difference, especially when he encounters injustice.
An interesting person with a history that spans from civil rights activities in Alabama and Georgia to clashes with local law enforcement in Iowa City, Baxter’s life story alone would likely be enough to prompt this article. But that’s not the reason for this interview. The unfortunate reality is that Baxter is one of about 3,000 people in living Iowa who are identified by the state as dangerous weapons worthy of regulation.
Sixteen years ago this month, Baxter learned that he was HIV positive.
“I like to tell people that I got HIV from doing what I thought I was supposed to be doing,” he said. “That is, I was living in a supposedly monogamous relationship. At the time, I don’t even quite know what I was thinking about the possibility of the person I was seeing being HIV positive. I think, looking back on it, I probably knew.
“I was doing HIV testing counseling. I was telling people how to have safe sex — mostly young men who were going out to bars and picking up men that maybe they didn’t know very well. That wasn’t what I was doing. Still, I ultimately was not following my own advice.”
Baxter, who was then a resident of Atlanta, had been living with another man for roughly three years, and, for a variety of reasons, the couple was aware that the relationship was coming to a close. Baxter made plans to get tested in September, a yearly activity he did in conjunction with his birthday. Although he asked his boyfriend to come with him and be tested, the man refused. The couple broke up shortly after that, and before Baxter learned that he was HIV positive.
“He may have known and he may just have not wanted to tell me,” Baxter said. “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.”
That attitude of personal responsibility toward his own disease has sparked Baxter’s interest about Iowa’s criminal law regarding HIV, which is among the second-most-serious felonies that can be committed in the state. Although the law is titled “Criminal transmission of human immunodeficiency virus,” the reality is that actual transmission of the disease is not required for there to be a criminal act. A person who is aware of his/her HIV positive status, according to the law, can be charged with criminal transmission for engaging in intimate contact with another person, providing bodily fluids or organs or sharing non-sterile drug paraphernalia. The only defense for a person with a positive status who is charged with the offense is to prove that status was disclosed prior to the offending action.
In the 11 years since Iowa began prosecuting behavior that could result in transmission of HIV, 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. Baxter, who bit another man during a bicycle-vehicle traffic dispute in Iowa City, was considered for prosecution under the law.
“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.”
Baxter had been riding his bicycle on a street near the University of Iowa. The man was driving a van, and, according to Baxter, came up too close behind him, honked and moved into the other lane to pass before pulling abruptly back in front of him, effectively cutting him off. When the man then made a turn and came to a stop outside the school of pharmacy building on campus, Baxter followed and confronted him.
“I hit the side of his window — still straddling my bike — and he gets out of the van. He reaches back between the front seats and gets a four-foot-long windshield scraper and starts beating the hell out of my face,” Baxter said. “His wife comes out of the building and she tried to get him to stop, but he pushed her and she fell down.”
Baxter, who admitted to confronting the driver, was charged several weeks later with assault causing injury, a serious misdemeanor. Nearly a year later, and following a jury trial, Baxter was found guilty and ordered to pay fines, complete community service and take an anger management class.
“When I was sentenced, which I think was about two weeks after the trial, I was pretty shocked. I had actually deluded myself into thinking that I could win it,” Baxter explained. “When we lost our motion to suppress [my] HIV [status] at trial, my lawyer told me we lost the case. He said that he had been at a wedding in Davenport over the weekend and just sort of threw this out as a hypothetical. As soon as the HIV status came up there was absolutely no sympathy for me whatsoever. The people at the wedding thought that I put this person in jeopardy.”
Whether or not Baxter did place the man in jeopardy is a subject of contention. Most virus experts agree that the possibility of transmitting HIV through saliva or other bodily fluids that are not blood is minuscule, but no one is ready to definitively say the disease cannot be transferred by those means. Also the Iowa law is written with a broad brush, encompassing any and all bodily fluids, and making no exceptions for condom use or viral loads, information the medical community has acknowledged as playing a large role in possible transmission.
On a personal level, Baxter took at least two lessons away from the incident. First, Iowa law makes it difficult for a person who initiates a confrontation to later claim that he/she was acting in self-defense. And, second, “if you have HIV, you lose your right to self-defense.”
“I think that I would have stood a pretty good chance of winning the case if it was not for HIV,” he said, adding that his status creates an odd circumstance of living. “Really, HIV, despite the fact that it in some ways sort of runs my life, I’ve never been ill from it.”
Sledgehammers and Thumbtacks
Baxter, who is in his 50s and remains an avid bicyclist, is in physically better shape than many men half his age. He manages his disease by taking medications — four pills a day, usually before he goes to bed. The worst health he has known as a result of the disease is attributed to the initial side effects of the medications before his body adjusted to them.
“My ideal HIV law would probably not require transmission, but it would require intent,” he said. “I think that intent certainly has to be a factor. It should be difficult [to convict] … I mean, beyond a reasonable doubt, right?”
Baxter also advocates moving Iowa laws closer to those in neighboring Illinois. That state did not write a criminal code specific to HIV, but used existing public health laws to deal with any crimes associated with sexually transmitted diseases.
“I think the law we have here is a sledgehammer that is mostly looking for a thumbtack. I think the latest thumbtack was Nick Rhoades,” Baxter said in reference to a Black Hawk County case earlier this year where a 34-year-old man was sentenced to 25 years in prison following a one-time consensual encounter that did not result in transmission.
“I get no impression from him other than the fact that he is probably a 34-year-old man who is not a paragon of responsibility. He obviously has had some substance abuse issue, which is actually pretty common in the gay community. He is not a criminal, and his sentence angers me on a couple of fronts. He’s probably never transmitted HIV to anybody, let alone the person who made this complaint against him. As a taxpayer in the state of Iowa I also realize that we are probably spending between $65,000 and $70,000 per year to keep him behind bars. That pisses me off. That would piss me off if I weren’t HIV positive.”
Although knowledge about HIV has increased in the decade since Iowa wrote its criminal transmission law, the law itself remains untouched. Baxter acknowledges that another decade will bring more knowledge and perhaps changes.
“Yes, we are learning more and, as older judges and prosecutors are replaced by younger ones, there will likely be changes,” he said. “So, yes, I think that time will take care of this — but how much time?”