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.