AIDS/HIV | Iowa | Lambda Legal | News | Nick Rhoades

Lambda Legal Appeals HIV-Positive Man's Transmission Conviction to Iowa Supreme Court

Yesterday, Lambda Legal filed an appeal in the Iowa Supreme Court over the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison and required to register as a sex offender based on a one-time sexual encounter with another man during which they used a condom, said the organization via press release.

RhoadesLambda explains the case:

In June 2008, Rhoades had a one-time sexual encounter with Adam Plendl during which they used a condom. Several days later, Plendl was told by a friend that Rhoades might be HIV-positive.The police were contacted, and Mr. Plendl cooperated fully in the prosecution of Mr. Rhoades. The police arrested Rhoades in September 2008, and on the advice of his counsel, he pled guilty. Despite the fact that a condom was used and Mr. Plendl did not contract HIV, Rhoades was convicted under Iowa's HIV criminalization law. He received the maximum sentence: 25 years in prison and classification as the most serious type of sex offender. Subsequently, the court suspended his prison sentence, and he was placed on supervised probation for five years. On March 15, 2010, Rhoades filed an Application for Post-Conviction Relief, arguing that the attorney who advised him to plead guilty had failed to inform him of the specifics of the statute, resulting in his conviction for a crime he did not in fact commit. In December 2011, the district court denied the application, and Lambda Legal began representing Rhoades on appeal. Oral argument were presented to the Iowa Court of Appeals in early September (2013), and on October 2, a three-judge panel affirmed Rhoades's conviction.

Thirty-nine 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. Among other things, HIV criminalization perpetuates the many myths and misconceptions that fuel other types of discrimination against people living with HIV. It sends an inaccurate message regarding prevention responsibility, creates a disincentive to getting tested, and may actually discourage disclosure of HIV status.

Added Scott Schoettes, HIV Project Director for Lambda Legal: "We're asking the Iowa Supreme Court to review this case because the facts here don't add up to a conviction. The Court of Appeals' decision was based on a misinterpretation of the plain language of the statute, and we look forward to presenting the case to the state's supreme court. A person who uses a condom and engages in safe sex, as Nick did, does not have the intent required to support a conviction under Iowa's law addressing exposure to HIV."

More on the case at Lambda Legal's website.

Previously on Towleroad...
Nick Rhoades: Imprisoned fro Months, Punished for Life, for Failure to Disclose [tlrd]
Criminalizing the HIV-Positive Community [tlrd]

Feed This post's comment feed

Comments

  1. I'm sorry to see Lambda Legal taking up the radical cause of a "right" to lie about one's HIV status for sex. Putting on an condom and lying, as happened here, does take away the other person's right to know material facts and give fully informed consent to the risks. The injustice in this case was the absurdly harsh sentence, not that the guy was held accountable for what he did. It just should have been a minor misdemeanor without actual transmission or anal sex.

    Posted by: skepticalcicada | Oct 23, 2013 9:00:37 AM


  2. This is absolutely crazy. They hooked up, they used protection. When you have casual sex, YOU KNOW THE RISKS. This dude just got convicted of hooking up while being HIV+. Simple as that.
    Crazy.

    Posted by: Lucas H | Oct 23, 2013 9:37:01 AM


  3. "Despite the fact that a condom was used and Mr. Plendl did not contract HIV"...
    Is someone missing this very important fact? He should be thankful he did not contract HIV and count his blessings. Now to put the HIV+ in the clink for 25 years? I don't understand justice at times.

    Posted by: Matteo | Oct 23, 2013 9:45:43 AM


  4. Missed this part...sorry.
    "Several months later, the court suspended his prison sentence and placed him on supervised probation for five years."
    Still 5 years on probation is harsh, no?

    Posted by: Matteo | Oct 23, 2013 9:50:52 AM


  5. This sucks. One guy freaks out on this poor dude and gets him railroaded. You know what the other guy 100% DID NOT DO? ASK FOR THIS GUYS STATUS. They used condoms and he was 0 viral load so there was of course no way that HIV was going to be carried over.

    Posted by: Fenrox | Oct 23, 2013 10:13:04 AM


  6. This law is absurd. Adam Plendl, obviously a cowardly turncoat, who had Nick Rhoades prosecuted, should be slapped upside his head. This was sex between consenting adults. They used condoms. The sex was safe. Plendl has tested negative. It was Plendl's responsibility to ask Rhoades if he was negative or positive. It is not clear that Plendl had asked Rhoades his HIV status. Even so, Plendel finds out from someone else that Rhoades is possibly HIV+ and then has the police arrest and prosecute him. That is the classless act of a punk. Rhoades should never have been convicted for consensual sex. Rhoades was set up by Plendl, if anything. This is an outrage. I hope Rhoades gets legal redress. Plendel needs to watch his back.

    Posted by: jamal49 | Oct 23, 2013 10:55:10 AM


  7. He should not have been arrested or convicted. If you're not willing to ask if your sexual partner knows his status and what it is, you should be willing to accept that he could be positive and not engage in sex that is outside your risk comfort zone. Plendl busted a guy while taking zero responsibility for having a paranoid reaction to quite safe sex.

    Posted by: Ernie | Oct 23, 2013 1:10:03 PM


  8. Fenrox, you sociopath, the individual who carries the lethal virus has the responsibility to disclose. It isn't OK to say "hey, he didn't ask, so who cares?" You don't get to say "my victim was stupid, so therefore what I did was legal."

    If he had disclosed, he would not be a convicted felon today. Even if the two had then gone on to have sex and even if HIV was actually transmitted, he would not be in any legal trouble if he had disclosed. He was perfectly free to make the argument to his partner that he had an undetectable viral load and that condoms would be used. Make that argument and persuade your partner that the risk is acceptably low. You don't get to procure sex through concealment.

    Posted by: Finn | Oct 23, 2013 2:21:17 PM


  9. Jamal49/Ernie:

    No, it is not the responsibility of someone to ask if their partner has a lethal virus, anymore than it is the obligation of a guest to ask his host of the food and beverages contain poison.

    They are entitled to assume that they will be told that if it is the case. At the very least, it is well with the purview of the state of Iowa to create a legal rule putting the onus on the party with superior knowledge to disclose the facts.

    Now, in the context of HIV, it is certainly smart to ask. It is certainly dumb to have sex and not know the status of your partner or assume that he is positive. But the fact that one party is dumb (or young or naive) is in no way an excuse for the other party to have sex, knowing that he is exposing his partner.

    The fact that you have arrived at the point in your lives where you are defending this shows how debased you have become. Do you also defend the man arrested 2 weeks ago in Missouri after having potentially exposed 200 men, and who then defended his actions by saying that he "feared rejection."
    I wonder if you were this monumentally cruel, selfish and criminally minded when you were kids.

    Posted by: Finn | Oct 23, 2013 2:27:56 PM


  10. Finn: You make good points. But, where does the HIV+ person's responsibility end, and the HIV- person's responsibility begin? As Plendl was over the age of majority at the time, and happens to be an educated individual, he had to know that casual sex comes with HIGH risks.

    We all know this. When you trick off of Grindr, you put yourself at risk. Off Craigslist, off Manhunt, with strangers at the bar, with those friends-of-friends we randomly meet at parties. Every casual encounter we have carries risk.

    Comparing the criminal in this case, Rhoades, who had protected sex, to the man from Missouri who exposed 200+ men, doesn't work.

    Had Rhoades been charged with a misdemeanor, or something else more fitting to his inconsiderate actions toward Plendl, I wouldn't be "defending" him. But from what I've read here, this is a GROSS overreaction to what actually occurred - consenting, protected, casual sex between two adults who live in an age and society where they are fully aware of the risks they took at the time.

    Bottom line: if you don't know your partner, if you don't know his status (regarding ANY STD), you better act like he might be carrying something.

    Posted by: Lucas H | Oct 23, 2013 3:36:02 PM


  11. Oh and - for the record - having consensual sex is not the same as being a guest at someone's dinner party. It's more like bringing food to a potluck.

    Posted by: Lucas H | Oct 23, 2013 3:38:28 PM


  12. The guy's obviously a total creep for not disclosing his status but his sentencing was and is absurd.

    Posted by: JMC | Oct 23, 2013 3:57:15 PM


  13. Lucas, thanks for the comment. Whether you analogize it to a dinner or a potluck, the same point applies: the person who has actual knowledge that the food is poisoned or unsafe is the one who has the obligation to tell the others. It is not OK to serve poison or for a potluck guest to bring poison to the party and then and say that the others should have asked whether there was arsenic in the chicken.

    As for the risk and responsibility, I agree that Plendl bears responsibility to protect himself. If he fails to do so, there is a built-in consequence: he risks being infected.

    But regardless of Plendl's obligations to himself, there is an independent obligation by Rhoades not to expose Plendl without at least disclosing his status first. Failure of Plendl to be smart doesn't eliminate Rhoades' duty to disclose.

    Once he discloses, he and his partner are free to do as they please. This isn'ta law that bars HIV+ people from ever having sex. It doesn't even criminalize actual transmission of the virus. It just requires disclosure so that the partner can make fully informed decision about the risk and whether he wants to accept it.

    A lot of people make the argument that Plendl and folks who hook up on Grindr already assume that that their partners are positive or understand that there is a high level of risk. If that's true, then disclosure should be a nonissue. Rhoades could have disclosed and Plendl would have said "No problem, I assumed that you were positive."

    Of course, this is nonsense. It is precisely because his HIV status would be an issue and an obstacle to a successful sexual encounter that people like Rhoades want to conceal it. Telling means a chance of no sex, so just don't tell. That is the Missouri man's "fear of rejection" defense. It is wrong and Iowa is right to criminalize it.

    As for the fact that he used condoms and there was no actual transmission, I agree that this should weigh significantly in sentencing. I certainly don't agree with the maximum sentence in a case like this. I would think that 1 or 2 years would punish him, deter him and deter others. In the case of the Missouri man, I would support the maximum. But Lambda is not just challenging the sentence here, it is challenging the entire concept of disclosure laws. They are generally a good group, but they are dead wrong on this.

    Posted by: Finn | Oct 23, 2013 4:11:06 PM


  14. This guy should be in life in prison without the possibility of parole No one infected with HIV should ever be able to have sex without disclosing their status. He should be charge with attempted homicide or at least manslaughter. Without better enforcement of these disclosure laws, we will never end the pandemic.

    Posted by: DB | Oct 23, 2013 4:15:44 PM


  15. I cannot believe some people are posting here that this HIV infected criminal who is risking killing other people should not be charged for his crime. Yes, every uninfected person needs to protect himself, but that in no way negates the absolute and independent responsibility of an infected person to both use a condom and disclose his status every single time. While it may be a good idea for an innocent person to wear a bullet-proof vest while out for a walk, that does not mean that a homicidal maniac has a right to shoot a loaded gun at the innocent person.

    Posted by: DB | Oct 23, 2013 4:23:57 PM


  16. I cannot believe some people are posting here that this HIV infected criminal who is risking killing other people should not be charged for his crime. Yes, every uninfected person needs to protect himself, but that in no way negates the absolute and independent responsibility of an infected person to both use a condom and disclose his status every single time. While it may be a good idea for an innocent person to wear a bullet-proof vest while out for a walk, that does not mean that a homicidal maniac has a right to shoot a loaded gun at the innocent person.

    Posted by: DB | Oct 23, 2013 4:23:57 PM


  17. Rest assured the majority of people who commented on this issue probably bare backs! Not only the hypocrisy of the law but also of man!

    Posted by: wopboptorledo | Oct 23, 2013 4:40:29 PM


  18. Weird leap, @Finn. Because Jamal and I agree with Lambda Legal, suddenly we're monumentally cruel, selfish, and criminally minded? No, we just disagree with your take on this.

    Adam Plendl would have saved himself a lot of stress if he had asked, because accepting the risk of having PROTECTED sex with someone of unknown status was clearly, in retrospect, unacceptable to him. (It's not unacceptable to everyone.) Taking responsibility for yourself and for your own comfort levels around sex is for your own good, not anyone else's. Communication is a 2-way street. Perhaps both he and Mr. Rhoades have learned from the experience.

    The various over-the-top analogies are irrational for this situation, where 2 men had protected sex in which no harm was caused. And why would anyone assume people who agree with Lambda Legal bare back or support barebacking?

    Posted by: Ernie | Oct 24, 2013 5:04:28 AM


  19. It is everyone's responsibility to protect themselves. You can't rely on your partner to disclose his/her HIV status. You ask and hope for the truth (if the person is even aware of their true status) and you use condoms. No one should be charged for any crime unless they knowingly and intentionally infect someone with HIV or any STD for that matter.

    Posted by: Donny | Oct 24, 2013 2:58:23 PM


  20. The fact that HIV is still the primary STI that is targeted for prosecution reflects the strong stigma there remains for it. And as long as there is stigma, one can imagine it is difficult to disclose. Herpes may not kill, but is something that makes one a lifetime carrier. Are we to prosecute each infection case as an assault? What other categories of crime can we assign to each STI?

    Posted by: andy3433 | Oct 25, 2013 7:52:09 AM


Post a comment







Trending


« «White House Official Fired After Investigation Reveals Him to Be Anti-Administration Twitter Troll« «