A case before the Ohio Supreme Court raises questions about free-speech, consensual sex, infectious diseases and a state law that mandates HIV-positive people to disclose their status to their partners.
Orlando Batista didn’t tell his girlfriend that he is HIV-positive when they began having sex in November 2013 and she was later diagnosed with it.
In Hamilton County, Batista was indicted on one count of felonious assault, based on a state law that prohibits someone with HIV from knowingly having sexual conduct without disclosing her or she status beforehand. Batista pleaded no contest, was found guilty and sentenced to eight years in prison.
At his sentencing, the girlfriend, identified as “R.S.” said Batista had infected another woman and his wife, who had passed the virus on to one of their children.
Batista appealed to the First District Court of Appeals, challenging the law based on equal-protection and free-speech grounds. Though he lost in the appeals court, the Ohio Supreme Court agreed to review the issues.
Batista argues that while the government has an legitimate public health interest in preventing the spread of infectious diseases, the law lacks a rational basis. Why is the transmission of HIV criminalized but not other infectious diseases such as Hepatitis C and HPV? Batista argues that Ohio’s law, passed in 2000, speaks to a prejudice against those with HIV, even as treatment methods have advanced to make the diseases manageable.
In 2015, 22,355 Ohioans were living with HIV, according to state health records. Prosecutors argue that the law is narrowly tailored to stop one method of virus transmission and once informed, consenting adults may make their own decisions about sexual conduct.
Batista also argues that First Amendment court cases articulate the right to speak as well as not to speak.
The Ohio Supreme Court will hear arguments Wednesday, May 17.
Several groups filed amicus briefs to support Batista’s arguments: the American Academy of HIV Medicine, Center for HIV Law and Policy, Human Rights Commission, Ohio Public Defender, Center for Constitutional Rights and the American Civil Liberties Union.
States began criminalizing HIV non-disclosure, starting with Louisiana in 1987, according to the University of Cincinnati Law Review. Between 2003 and 2013, Ohio had 356 HIV-related prosecutions and 59 convictions, making it the state with the fourth highest record of HIV criminalizations, the UC Law Review reported in 2015.
Violating the Ohio law is a second degree felony that can carry a two to eight year prison sentence.