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Sunday, 3 May 2009

US: Gay man in Iowa gets 25 years for one-time non-disclosure to a single complainant

Given the things I write about on this blog, I thought I was inured to outrage.

However, the 25 year jail sentence for a gay man in Iowa earlier this week for not disclosing his HIV status prior to one-time sex with a man he met online, reaches new lows in the history of criminalisation. This is a potential human rights violation almost on par with Willie Campbell's 35 year prison sentence for spitting. (I'm thinking about the Eighth Amendment's Cruel and Unusual Punishment Clause, a discussion of which can be found here.)

The Waterloo and Cedar Falls Courier reports that Judge Bradley Harris sentenced 34 year-old Nick Clayton Rhoades to 25 years in prison, the maximum punishment under Iowa's draconian (and mistitled) "criminal HIV transmission" laws, following a guilty plea. There was no tranmission: the male complainant has not tested HIV-positive, and it is now almost a year since the encounter. (The subtlety seems lost on the headline writer, who erroneously states: 'Plainfield man gets 25 years for transmitting HIV' )

Not only was there no sentence reduction due to Mr Rhoades' plea (after all, he saved the court a lot of time and money; and let's face it, it was one person's word against the other, which could have gone either way with a jury), but Judge Harris additionally placed Mr Rhoades on lifetime parole and ordered him to pay court costs and restitution.

In addition, he ordered that must Mr Rhoades must:

  • not contact the complainant for five years
  • register as a sex offender
  • and undergo a sex offender treatment programme.
"Simply because it happens regularly that people don’t disclose, doesn’t mean it’s safe," Harris said. Despite improved treatments, he told Rhoades, contracting human immunodeficiency virus" does change your life, and you more than anyone else should know that."

[...]

"One thing that makes this case difficult is that you don’t look dangerous; you don’t look like most of our criminals that sit here," said Harris. "But the risk is still there, just like if you would have shot a gun."
According to the report, Mr Rhoades met the male complainant, "in an Internet chat room" on June 26th 2008, and then went to his home to have sex.
Although the contact was consensual, the victim, who has since tested negative for HIV, said Rhoades denied he had any sexually transmitted infections. "I should have had the right to choose whether to be intimate with someone who was HIV positive," the victim read in statement to the court. "Instead, Nick was manipulative and denied me that right. … He lied online, and he also lied to me in person when I asked him directly if he was ‘clean.’"

Rhoades said he doesn’t remember discussing his HIV status with the victim. He drank heavily and took prescription pills before having sex, a combination that he said clouded his judgement. In addition to HIV, the defendant also was being treated for herpes and genital human papillomavirus at the time of the incident, said assistant county attorney Linda Fangman.

Rhoades, who was diagnosed with HIV in 1998, was arrested in September. Living with the virus is like "carrying a concealed weapon," he told the court, saying he felt guilty for exposing an unknowing individual to the disease.

"I always wanted to be part of the solution, and not part of the problem," said Rhoades, who had previously participated in AIDS education efforts. "Clearly, I’ve fallen short in this case."
Mr Rhoades sounds like a genuinely remorseful man. He believes that he should have disclosed his status, and didn't. Even if you agree with HIV disclosure laws in general – notwithstanding arguments supporting the concept of shared responsibility of both parties under these circumstances, or the unreliability of disclosure as a way of protecting yourself from sexually transmitted infections – there really is absolutely no justification for this outrageously long prison sentence.

To put this into perspective. A year ago I reported on a 12 year HIV exposure sentence in Arkansas (where the maximum penalty is 30 years) for a man who did not disclose to his girlfriend. At the time, it was the longest sentence I'd heard of for a single complainant. This is a single act!

Notwithstanding Johnson Aziga's likely life sentence after recently being found guilty of murder, the previous longest-ever sentence in Canada was 18 years, and that was for Carl Leone, with 15 complainants, including five who tested positive.

The longest sentence that I'm aware of in Europe has been for Christer Aggett, sentenced to 14 years in prison in Sweden, with a dozen complainants, two of whom tested positive, and half of whom were under 15.

In 2006, the Iowa Supreme Court upheld the law after Adam Musser, 25, appealed his four convictions - and 25-year-prison sentences - for having unprotected sex with four different women in 2002 and not telling them he was HIV-positive.

And yet, in 2007, a woman who also pleaded guilty after not disclosing her status to a single complainant during a three month relationship, had her 25 year prison sentence suspended and received four years probation.

Since Judge Harris has also ruled that he can adjust the sentence any time within the next 12 months (and there is already a precedent to suspend sentencing), I suggest that anyone who feels as outraged as I do, contact either Judge Harris, or Mary Stegmeir (mary.stegmeir@wcfcourier.com), the journalist who reported the case at the Waterloo and Cedar Falls Courier.

About Judge Harris, from the Iowa Judicial Branch website:

District Court Judge, Bradley J. Harris: District 1B Judge Harris, Grundy Center, was appointed to the bench in 2007. He received his undergraduate degree from Loras College in 1976, and his law degree from the University of Iowa in 1980. Judge Harris is a member of the Iowa Bar Association, the Grundy County Bar Association, as well as the Iowa County Attorney Association. Prior to his appointment to the bench, he was a partner at the law firm of Kliebenstein, Heronimus, Schmidt, and Harris, and also served as the Assistant Grundy County Attorney from 1995 to 2003, and the Grundy County Attorney from 2003 to 2007. Judge Harris is married and has two children.

11 comments:

Anonymous said...

It appears that there was not a single word about condoms. To me it indicates that he male "victim" and complainant - the 'Cedar Falls man' is a bareback top searching actively for unprotected sex on the Internet.

Anonymous said...

According to the comment section on this story, someone who claimed to be in teh courtroom states that this was Oral Sex and based on the risk of transmission stated it would seem that the HIV+ person was was the receptive partner. This just adds even more crazyness to this story

FM
London

Anonymous said...

Actually, it came out in the courtroom that the HIV+ man wore a condom for insertive anal sex, but the oral sex was unprotected. The reporter mentioned in the blog was present during the trial at the invitation of the "victim" and published an article that included few facts and much gossip. I consider this to be a failing of epic proportions in the justice system. The judge ignored precedent as the majority of max sentences in Iowa were also multiple offenders and/or included minors.

Anonymous said...

I should have also mentioned that the defense requested a "structured environment" including the lifetime parole and sex offender status in lieu of prison time. This man felt extreme remorse for what he had done, and already had served 9 months in jail.

Edwin J Bernard said...

Thanks for posting these comments. I'm particularly interested in the last two. If what you say is true - that the only risk was oral sex, and that a condom was worn for anal sex - then this is indeed even more of a travesty. I am also concerned by your allegations that the only report we have of the case may have been tainted in some way.

Can you substantiate any of your claims?

Can anyone put me in touch with the man's lawyer?

What we need is a court transcript.

Anonymous said...

This is very discouraging. I am an HIV+ man living in Iowa City. in 2007 I was assaulted after I confronted a driver who tried to run me down on my bicycle (I am also a bicycle and pedestrian rights activist). After this person beat me on the side of the head with a four foot long windshield scraper, he poked me in the face several times with his finger--one of those pokes landed his index finger four inches into my mouth. I was charged with assault causing injury after several week of the Johnson County prosecutor debating if I should be charged under Iowa's HIV transmission law. I think it was the possibility that an obscure assault charge would land somewhere on the NYTimes that saved me from being charged in exactly the same way this person was charged and convicted. This law is applied regardless of intent, regardless of whether the HIV+ is even capable of spreading HIV (I've been undetectable since 1996 and it's highly unlikely I can even transmit HIV from unprotected sex let alone a finger bite. HIV was used in court to show that I responded to being assaulted in an irresponsible manner. Read: as an HIV+ person I have no right to defend myself.

Ameenah20 said...

That may have been a bit heavy handed, but as someone who works in the field of HIV/AIDS, it is crucial and a matter of quality of life that someone who has HIV or AIDS to be forthright. It was fair for the HIV positive man to possibly put someone's life in jeopardy. It is also pretentious for victim to not use condoms.

That sentence was extrememly harsh especially since the victim did not test positive for HIV and it is likely he will not test positive from that incident anyway. If he does test positive, it is not medically possible that it came from the defendant in this case.

Interesting this case is because it is a matter of safer sex practices and morals.

Anonymous said...

I found this punishment to FAR out weigh the crime. This is actually, something the 8th Ammendment doesn’t allow. Let’s see: consenual sex…one time contact, NO INJURY, NO INTENDED INJURY, 25 YEARS, Register as a sex offender, LIFETIME PROBATION! WOW, the Supreme Court ruled, that “the Constitution permits sentences to be based on a variety of non-retributive (crime-preventive) goals” in the 8th Amendment. I would say that ths is definitely retributive for an HIV guy who made a mistake. No one else came forth to show that this was an on-going pattern for the offender. People should be writing Judge Harris, State of Iowa District Court, 315 E. 5th Street, Waterloo, IA 50703 to tell him about this injustice!vNot only was there no sentence reduction due to Mr Rhoades’ plea (after all, he saved the court a lot of time and money; and let’s face it, it was one person’s word against the other, which could have gone either way with a jury), but Judge Harris additionally placed Mr Rhoades on lifetime parole.

Anonymous said...

Does anyone know how to find out if LAMBDA is all over this? It just makes me sick. Yes, everyone should always be honest. BUT, he did not intend to harm the guy, he did not harm the guy.

What about all the other ways people put themselves into dangerous situations. Maybe the "victim" should have psychiatric care since he was out of his mind to believe anyone today. Even it he was negative, he could have been exposed 2 days or 2 weeks earlier. We should all be very concerned and try to help this guy to get a reduced sentence.

Edwin J Bernard said...

Lambda Legal has been in touch with me, and they are trying to intervene.

Anonymous said...

Interesting info about Iowa legislation: http://iowaindependent.com/16351/hiv-positive-mans-prison-sentence-shines-light-on-iowa-law

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