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Does HIV Disclosure Requirement Violate Free Speech?


The Ohio Supreme Court is considering whether the free speech rights of people living with HIV were violated by a law requiring they disclose their status to potential sexual partners.

In July 2014, Orlando Batista was indicted in Hamilton County for felonious assault for having sex with his girlfriend without telling her he’s HIV positive.

He admitted in court that he had also infected at least two other women, one of whom passed the virus on to their child. Batista was convicted and sentenced to eight years in prison.

He appealed the conviction on the grounds that the law requiring him to disclose his HIV status violates his equal protection and free speech rights. Josh Thompson represented Batista before the Ohio Supreme Court.

“There’s no doubt that Mr. Batista’s behavior in this case was reprehensible. But this case is bigger than him," Thompson said. "This case is about all HIV positive people in Ohio. It’s about the burden that is passed on his victims that requires them, for the rest of their life, to disclose their HIV status to potential sexual partners.”

But on the other side was Samuel Peterson with the Attorney General’s office. He said the law is fair because it was very narrowly drawn – to ensure that only one other person would know the other’s HIV status. 

“The General Assembly was very clearly concerned with informing potential sexual partners. That is an informed consent aspect. And it is necessary in order to promote personal autonomy and personal agency," Peterson said.

"It is a recognition that when you have sexual conduct, there are two parties to that conduct, and the other person has a right to know and has a right to be party to the decision to engage in the sexual conduct.”

But also arguing for Batista was Avram Frey with the national Center for HIV Law and Policy.  He said there’s a stigma associated with HIV which prevents people from getting tested and seeking treatment. He said the law perpetuates that by unfairly discriminating against people with HIV with draconian punishment – but not people with other diseases like HPV, which is much more prevalent.

“There’s no rational basis for that distinction, for that singling out of people with HIV and AIDS. And accordingly, we respectfully submit that this Court should find that the true purpose underlying the statute is unconstitutional animus,” Frey said.

But Peterson told Justice Judy French that the law was written regarding HIV and not other diseases not to discriminate against people with the virus, but because it’s different.

“HIV is unlike, for example, hepatitis C, because there is a cure for hepatitis C.  There is no cure for HIV."

Peterson admitted he didn't know if hepatitis C was curable when the law was written, but he added, "What is true at the time the statute was drawn is the second point, which is – the primary transmission vector of HIV and hepatitis C is different.”

The state says 22,355 Ohioans were living with HIV as of 2015. As of that year, Ohio reported the fourth-highest rate of HIV-related prosecutions for the previous decade, with 59 people convicted.