Here’s Where Sex When HIV-Positive Won’t Mean Being Labeled a Sex Offender

Iowa’s Supreme Court last week overturned the felony conviction of a man who allegedly failed to tell a sexual partner he was HIV-positive.

Nick Rhoades. (Photo: Sero Stories/YouTube)

Jun 20, 2014· 2 MIN READ
Nicole Pasulka is a writer and reporter who lives in New York City. She has written for Mother Jones, BuzzFeed, The Believer, and the New York Observer.

In 2008 Nick Rhoades had sex with Adam Plendl, a man he met online. The sex was consensual—both were adults—but Plendl contacted police afterward because he learned that Rhoades might be HIV-positive.

In Iowa and 34 other states, HIV-positive people are breaking the law if they do not disclose their status before sex. Even though the couple used a condom and Plendl didn’t contract the virus, Rhoades was charged with criminal transmission of HIV, a felony that can carry a sentence of up to 25 years. On the advice of his lawyer, Rhoades pleaded guilty in 2009.

Rhoades spent several months in jail before his 25-year sentence was commuted to five years of probation. He also had to register as a sex offender.

After the sentencing he received an outpouring of support from friends, family, and HIV activists.

“Murderers and child rapists receive less time than this young man did,” one of Rhoades’ friends wrote to the sentencing judge.

Since he was convicted, Rhoades has been a dogged opponent of criminal transmission laws across the country. He is part of a growing movement. Activists, lawyers, public-health experts, and lawmakers have criticized these laws, arguing that they discourage people from disclosing their status for fear of prosecution or discrimination. Many also say that intentional transmission—the act most laws aim to punish—is rare.

Criminalizing transmission “undermines the public health message that all people should practice behaviors that protect themselves and their partners from HIV and other sexually transmitted diseases,” according to the REPEAL Act, federal legislation introduced in 2011 by California Rep. Barbara Lee that would review state and federal laws criminalizing HIV.

When overturning Rhoades’ conviction, the court said that it was unclear whether Rhoades actually exposed Plendl to the virus. In the event that he did, the court found it was still not clear whether that exposure was intentional and likely to transmit HIV. The Blackhawk County court that initially sentenced Rhoades will now have to decide whether to try the case, negotiate a plea, or throw out the charges.

Rhoades called the court’s decision “a victory for EVERYONE living with HIV,” Sergio Hernandez at BuzzFeed reported. Since 1990, more than 500 people have been charged with criminal transmission of HIV, some for acts such as spitting or biting, which pose almost no risk of transmission. This April an Illinois woman was charged after she spit on an officer while in police custody.

Two weeks before Rhoades’ conviction was overturned, Iowa revised its criminal transmission law. Now those convicted of criminal transmission no longer have to register as sex offenders. The law retroactively removes those on the list because of a criminal transmission conviction, including Rhoades.

Ronald Bogardus, an Iowa man with cerebral palsy, also pled guilty to not telling his partner about his HIV status. Bogardus is a dedicated nurse’s assistant with an undetectable viral load. He was sentenced to probation in February. If he can be removed from the sex offender registry, he may be able to work as a nurse’s assistant again.

Last year Bogardus told The Daily Iowan, “I wanted to tell him, but when I went to say it, I clammed up.... I was afraid he was going to blab it out to everybody. But I still regret not telling him. I really do.”