This post was written by Hayley Scheer. Hayley is an LL.M. candidate in Global Health Law and International Institutions at Georgetown University Law Center. She is currently an extern at the Joint United Nations Programme on HIV/AIDS (UNAIDS). Any questions or comments about this post can be directed to hns13@georgetown.edu.
The Ohio Supreme Court recently made a move in a positive direction for rights of individuals living with HIV when it announced that it would review the state’s HIV criminal exposure law for its constitutionality.
Ohio currently has a specific HIV exposure law that carries a felony conviction if found guilty. Ohio’s state laws provide that failure to disclose one’s HIV status to his or her partner is a felony, punishable up to eight years imprisonment. While proof of disclosure prior to sexual conduct is considered an affirmative defense to such a charge, use of condoms or other use of protection is not recognized in the state’s jurisdiction. However, case precedent has shown that proof of disclosure is extremely difficult to prove in court when an individual is charged under this statute.
The Center for HIV Law and Policy, along with fourteen other Ohio-based and national HIV group have achieved a significant step toward changing Ohio’s HIV criminal laws when the Ohio Supreme Court agreed to review the HIV criminal law that convicted Orlando Batista of an eight year prison sentence under the HIV felonious assault statute. Batista was tried and convicted for failing to disclose his HIV positive status to his girlfriend prior to engaging in sexual intercourse, to which he did not contest.
On appeal, Batista and his attorneys challenged the legality of the Ohio statute he was convicted under, claiming that the statute is unconstitutional on a state and federal basis. The Center for HIV Law and Policy and the ACLU of Ohio Foundation submitted a brief in support of Batista’s petition on appeal that the felonious assault statute: 1) violates the Equal Protection Clauses of the Ohio and U.S. Constitutions; 2) violates the Free Speech Clauses of the First Amendment and the Ohio Constitution; and 3) violates the Americans with Disabilities Act. The Ohio Supreme Court agreed to hear the case; the Center for HIV Law and Policy expects to submit an amicus brief to the Ohio Supreme Court by the end of 2016.
If the Ohio Supreme Court finds the law unconstitutional, the effects would be substantial, and build on the momentum created by Iowa and Colorado, who recently effectively repealed and replaced their own state-based HIV criminalization laws and STI codes. There has been long a consensus that HIV criminal laws are out of date and used inappropriately for convictions—this kind of decision would implement the change necessary to align the law with modern science.
To read more about the Ohio Supreme Court’s review and Orlando Batista’s ongoing case, visit http://www.hivlawandpolicy.org/news/ohio-supreme-court-will-review-felony-hiv-exposure-law-and-conviction.
For more information and resources on state HIV criminalization and civil advocacy group movements, visit www.hivlawandpolicy.org.
