Two interesting cases are working their way through the system in Ohio.
Robert Murdock was charged with murder in Ohio for not telling his mistress, Kimberly Klempner, he was HIV positive. The indictment alleges that Murdock knew he was HIV +positive but failed to tell his mistress. The indictment continued they had unprotected sex during their five year relationship. Klempner died from AIDS. A police report stated that after Murdock’s wife learned of the affair, she told Klempner her husband was HIV positive. That must have been an awkward conversation.
Murdock was also charged with felonious assault.
Next, Orlando Batista was indicted for felonious assault – for having sex with his girlfriend without telling her he was HIV positive. He admitted in court to having infected at least two other women, one of whom passed the virus to her child.
Batistsa was convicted and sentenced to eight years in prison.
He appealed staying that the law requiring him to disclose his HIV status violated his rights to equal protection and free speech. His lawyer argued before the Ohio Supreme Court.
“There’s no doubt that Mr. Batista’s behavior in this case was reprehensible. But this case is bigger than him. This case is about all HIV positive people in Ohio. It’s about the burden that is passed onto his victims that requires them, for the rest of their lives, to disclose their HIV status to potential sexual partners.”
When your lawyer is arguing your behavior is reprehensible, that’s a hint you have an uphill battle.
The National Center for HIV Law and Policy argued that unfairly singling out people HIV for draconian punishment, but not people with more prevalent diseases like HPV or hepatitis C, constitutes unfair discrimination.
The Ohio Attorney General countered:
“The General Assembly was very clearly concerned with informing potential sexual partners. That is an informed-consent aspect. And it is necessary in order to promote personal autonomy and personal agency. It is a recognition that when you have sexual conduct, there are two parties to that conduct, and the other person has a right to know and has a right to be party to the decision to engage in the sexual conduct.”
As of 2015, 59 Ohio residents were convicted of HIV related prosecutions over the prior decade.
Each state varies in how it criminalizes transmission of HIV. More than 30 states have prosecuted individuals. A person diagnosed with HIV who infects another while engaging in sexual intercourse is, in many jurisdictions, committing a crime. A person donating HIV-infected organs, tissues, and blood can be prosecuted for transmitting the virus. Spitting or transmitting HIV-infected bodily fluids is a criminal offense in some states, particularly if the target is a prison guard. Some states treat the transmission of HIV, depending upon a variety of factors, as a felony and others as a misdemeanor.
In 2012, the HIV Medical Association and the Infectious Disease Society of America called for repeal of such statutes.
“It argued that such laws contribute to stigmatization and discrimination that inhibit diagnosis and result in “harsh sentencing for behaviors that pose little to no risk of HIV transmission.” It advised that “All state and federal policies, laws and regulations … be based on scientifically accurate information regarding HIV transmission routes and risk.”
A federal bill was proposed which called for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It died in subcommittee in 2011. It was reintroduced again in 2013, where it had the same fate.
To see if criminal prosecution based on HIV status is enacted in your state, click here.
What do you think?