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Gay Iowa man denied relief under HIV-criminalization law

Court rules Rhoades could have infected partner through unprotected oral sex

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National LGBT Bar Association, Gay News, Washington Blade

The Iowa Court of Appeals ruled that a gay Iowa man was at risk of infecting his partner through unprotected oral sex. (image via wikimedia).

A gay HIV-positive man in Iowa was unable Wednesday to obtain relief from his conviction under a state HIV criminalization law because he received unprotected oral sex while withholding his HIV status.

In a 3-0 ruling, the Iowa Court of Appeals ruled Nick Rhoades is ineligible for post-conviction relief because he may have transmitted HIV to his sexual partner in 2008 through oral sex. Judge Richard Doyle wrote the opinion.

“Sexual intercourse may be committed through oral sex, and oral sex is a well-recongized means of transmission of HIV,” Doyle writes. “The person exposed to HIV need not become infected with the virus in order for the infected person to be prosecuted under section 709C.1(4).”

In 2008, Rhoades had a one-night-stand with Adam Plendi. After meeting online at Gay.com, Rhoades went to Plendi’s home in Cedar Falls and the two had consensual sex. Rhoades received unprotected oral sex, and then the two had protected anal sex in which Plendi was the receptive partner. Rhoades is HIV-positive, but didn’t disclose that information to Plendi, who wasn’t infected by the encounter.

After later learning that Rhoades is HIV-positive, Plendi contacted the police, who charged Rhoades with criminal transmission of HIV. Under advice from his attorney, Rhoades pled guilty to the charges and was given the maximum sentence of 25 years in prison and classified as a sex offender. Several months later the court reconsidered the decision, suspended Rhoades’ prison sentence and placed him on supervised probation for five years.

In March 2010, Lambda Legal on behalf of Rhoades applied for post-conviction relief, arguing his attorney who advised him to plead guilty had failed to inform him of the specifics of the statute. Rhoades contended he didn’t violate the law because the anal sex was protected and during oral sex he didn’t intend to ejaculate.

In December 2011, the district court denied the application. The court of appeals decision on Wednesday affirmed that denial.

“[T]hat Rhoades may not have ejaculated during the unprotected oral sex is irrelevant,” the decision states. “Here, the minutes of testimony unequivocally establish Rhoades engaged in unprotected oral sex with A.P., and consequently, Rhoades’s claim that he did not ejaculate provides no support to his argument there was a lack of a factual basis regarding the ‘intent element’ of ‘intimate contact.’ We therefore conclude a factual basis existed to support Rhoades’s plea of guilty.”

The general consensus of research indicates while HIV infection through unprotected oral sex is possible, it’s extremely unlikely. According to the website for the Minnesota AIDS Project, the risk of HIV transmission is very low because the mouth is an unfriendly environment for HIV.

“Saliva contains enzymes that break down the virus and the mucous membranes in the mouth are more protective than anal or vaginal tissue,” the website states. “There are a few documented cases where it appears that HIV was transmitted orally and those cases are attributed to ejaculation into the mouth.”

The website for the Centers for Disease Control says “it is possible” to infect someone with HIV through performing or receiving oral sex and there have been a few reported cases of transmission, but it’s a less common mode of transmission than anal and vaginal sex.

Christopher Clark, Lambda’s senior staff attorney, said his organization is “extremely disappointed” because the conviction is the result of “a misinterpretation of the plain language of the statute.”

“Someone who engages in safe sex, as Nick did, does not have the intent required to support a conviction under Iowa’s law concerning the criminal transmission of HIV,” Clark said.

Clark said Lambda is reviewing possible options with Rhoades in the aftermath of the ruling, which includes a potential appeal to the Iowa Supreme Court.

According to Lambda, 39 states have HIV-specific criminal statutes or have brought HIV-related criminal charges, resulting in more than 160 prosecutions in the United States in the past four years. The laws have been criticized for creating a disincentive for HIV testing and potentially discouraging the disclosure of HIV status.

Scott Schoettes, HIV Project Director for Lambda Legal, said the court decision demonstrates the harm of HIV-criminalization laws.

“This decision is another example of how our outdated perceptions of and misunderstandings about HIV are still driving public policy, leading to horrifying criminal penalties for the person living with HIV, even in situations where no harm was intended or actually occurred,” Schoettes said.

Sean Strub, a native Iowan and founder of POZ Magazine, said the court decision is based on “misconceptions” over HIV transmission.

“There’s never been a documented, proven case where HIV was transmitted through anal sex from someone known to have an undectable viral load, let alone oral sex as was under consideration in this ruling,” Strub said. “It hasn’t even been established for certain that HIV is ever transmitted through oral sex, even when a person has a detectable viral load, except when there are open sores or other extreme circumstances.”

Legislation is pending before the Iowa Legislature that would modify the state’s HIV criminalization law. It passed the Iowa State Senate Judiciary Committee last year by an 11- 2 vote with bi-partisan support. Strub said he’s hopeful in this next legislative session the bill will pass and be signed into law by Gov. Terry Branstad.

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Congress

Congress passes ‘Big, Beautiful Bill’ with massive cuts to health insurance coverage

Roughly 1.8 million LGBTQ Americans rely on Medicaid

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U.S. House Speaker Mike Johnson (R-La.) (Washington Blade photo by Michael Key)

The “Big, Beautiful Bill” heads to President Donald Trump’s desk following the vote by the Republican majority in the U.S. House of Representatives Thursday, which saw two nays from GOP members and unified opposition from the entire Democratic caucus.

To partially offset the cost of tax breaks that disproportionately favor the wealthy, the bill contains massive cuts to Medicaid and social safety net programs like food assistance for the poor while adding a projected $3.3 billion to the deficit.

Policy wise, the signature legislation of Trump’s second term rolls back clean energy tax credits passed under the Biden-Harris administration while beefing up funding for defense and border security.

Roughly 13 percent of LGBTQ adults in the U.S., about 1.8 million people, rely on Medicaid as their primary health insurer, compared to seven percent of non-LGBTQ adults, according to the UCLA School of Law’s Williams Institute think tank on sexual orientation and gender identities.

In total, the Congressional Budget Office estimates the cuts will cause more than 10 million Americans to lose their coverage under Medicaid and anywhere from three to five million to lose their care under Affordable Care Act marketplace plans.

A number of Republicans in the House and Senate opposed the bill reasoning that they might face political consequences for taking away access to healthcare for, particularly, low-income Americans who rely on Medicaid. Poorer voters flocked to Trump in last year’s presidential election, exit polls show.

A provision that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation — reportedly after the first trans member of Congress, U.S. Rep. Sarah McBride (D-Del.) and the first lesbian U.S. senator, Tammy Baldwin (D-Wis.), shored up unified opposition to the proposal among Congressional Democrats.

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Congress

Ritchie Torres says he is unlikely to run for NY governor

One poll showed gay Democratic congressman nearly tied with Kathy Hochul

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U.S. Rep. Ritchie Torres (D-N.Y.) (Washington Blade photo by Michael Key)

Gay Democratic Congressman Ritchie Torres of New York is unlikely to challenge New York Gov. Kathy Hochul (D) in the state’s next gubernatorial race, he said during an appearance Wednesday on MSNBC’s “Morning Joe.”

“I’m unlikely to run for governor,” he said. ““I feel like the assault that we’ve seen on the social safety net in the Bronx is so unprecedented. It’s so overwhelming that I’m going to keep my focus on Washington, D.C.”

Torres and Hochul were nearly tied in a poll this spring of likely Democratic voters in New York City, fueling speculation that the congressman might run. A Siena College poll, however, found Hochul leading with a wider margin.

Back in D.C., the congressman and his colleagues are unified in their opposition to President Donald Trump’s signature legislation, the “Big Beautiful Bill,” which heads back to the House after passing the Senate by one vote this week.

To pay for tax cuts that disproportionately advantage the ultra-wealthy and large corporations, the president and Congressional Republicans have proposed massive cuts to Medicaid and other social programs.

A provision in the Senate version of the bill that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation, reportedly after pressure from transgender U.S. Rep. Sarah McBride (D-Del.) and lesbian U.S. Sen. Tammy Baldwin (D-Wis.).

Torres on “Morning Joe” said, “The so-called Big Beautiful Bill represents a betrayal of the working people of America and nowhere more so than in the Bronx,” adding, “It’s going to destabilize every health care provider, every hospital.”

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Congress

House Democrats oppose Bessent’s removal of SOGI from discrimination complaint forms

Congressional Equality Caucus sharply criticized move

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Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A letter issued last week by a group of House Democrats objects to Treasury Secretary Scott Bessent’s removal of sexual orientation and gender identity as bases for sex discrimination complaints in several Equal Employment Opportunity forms.

Bessent, who is gay, is the highest ranking openly LGBTQ official in American history and the second out Cabinet member next to Pete Buttigieg, who served as transportation secretary during the Biden-Harris administration.

The signatories to the letter include a few out members of Congress, Congressional Equality Caucus chair and co-chairs Mark Takano (Calif.), Ritchie Torres (N.Y.), and Becca Balint (Vt.), along with U.S. Reps. Nikema Williams (Ga.), Hank Johnson (Ga.), Raja Krishnamoorthi (Ill.), Delia Ramirez (Ill.), Joyce Beatty (Ohio), Lloyd Doggett (Texas), Eleanor Holmes Norton (D.C.), Josh Gottheimer (N.J.), and Sylvia Garcia (D-Texas).

The letter explains the “critical role” played by the EEO given the strictures and limits on how federal employees can find recourse for unlawful workplace discrimination — namely, without the ability to file complaints directly with the Employment Opportunity Commission or otherwise engage with the agency unless the complainant “appeal[s] an agency’s decision following the agency’s investigation or request[s] a hearing before an administrative judge.”

“Your attempt to remove ‘gender identity’ and ‘sexual orientation’ as bases for sex discrimination complaints in numerous Equal Employment Opportunity (EEO) forms will create unnecessary hurdles to employees filing EEO complaints and undermine enforcement of federal employee’s nondiscrimination protections,” the members wrote in their letter.

They further explain the legal basis behind LGBTQ inclusive nondiscrimination protections for federal employees in the EEOC’s decisions in Macy v. Holder (2012) and Baldwin v. Foxx (2015) and the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020).

“It appears that these changes may be an attempt by the department to dissuade employees from reporting gender identity and sexual orientation discrimination,” the lawmakers wrote. “Without forms clearly enumerating gender identity and sexual orientation as forms of sex discrimination, the average employee who experiences these forms of discrimination may see these forms and not realize that the discrimination they experienced was unlawful and something that they can report and seek recourse for.”

“A more alarming view would be that the department no longer plans to fulfill its legal obligations to investigate complaints of gender identity and sexual orientation and ensure its
employees are working in an environment free from these forms of discrimination,” they added.

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