Sexuality's law.

Author:Spindelman, Marc
Position:Appendix and footnotes, p. 228-252


This Appendix is a compilation of a variety of mainly domestic United States sources that involve actual or possible, if sometimes negligible or purely hypothetical, or even nonexistent, risk of exposure to or transmission of HIV, chiefly in cases involving male-male sex. The materials here do not purport to be exhaustive. Beyond substantiating a point made in the text, they are reproduced here to serve as an aid for research. Information about some very helpful resources collecting similar information, sometimes on an ongoing basis, is found infra on pages 250-52.

Male-male cases some of which (may) include only a men include:

* Commonwealth v. Garvin, 50 A.3d 694, 695 (Pa. Super. Ct. 2012) (affirming conviction of David Garvin for, inter alia, felony prostitution by "person who ... knew that he or she was ... [HIV] positive," after Garvin attempted to solicit undercover Office Joseph Ferrero (quoting 18 Pa. C.S.A. [section] 5902(a)(1))).

* People v. Dora, No. 297784, 2011 WL 4862440, at *4 (Mich. Ct. App. Oct. 13, 2011) (dismissing Dorn's ineffective assistance of counsel claim, which claimed it was an error for his attorney to fail to construct a defense around his HIV-status).

* Rhoades v. State, No. PCCV112123, at "3, 10 (Iowa Dist. Ct. Dec. 23, 2011) (denying Rhoades' application for post-conviction relief brought on grounds of ineffective assistance of counsel; affirming original sentence of up to 25 years in state prison, which was suspended and Rhoades placed on probation for five years and a five-year no contact order) (on file with author).

** Mary Stegmeir, HIV Case Brings 25-Year Sentence, WCFCOURIER.COM, May 3, 2009, (noting that Nick Clayton Rhoades received a 25-year sentence, "a five-year no-contact order with the victim," must "register as a sex offender and undergo a sex offender treatment program, will have lifetime parole and was ordered to pay court costs and restitution" for having "fail[ed] to disclose his HIV status prior to having sex with a Cedar Falls man").

** Nick Rhoades Appeals Criminal Charge, KSDK.COM, Nov. 30, 2012, (discussing case of Nick Rhoades as a case of a "young man in Iowa [who] knew his HIV status, but didn't reveal he was HIV positive to his sexual partner," and that "[a]fter a one-time encounter, Nick Rhoades found himself charged with criminal transmission of HIV because of his silence"; '"I actually was not guilty of what I pleaded guilty to...,' said Rhoades.").

* State v. Kinder, No. 94722, 2011 WL 826284, at *1 (Ohio Ct. App. Mar. 10, 2011) (affirming Kinder's convictions arising "from Kinder having consensual sexual relations with three men without informing them that he was HIV positive").

* State v. Gamble, 945 N.E.2d 1135, 1139 (Ohio Ct. App. 2010) (affirming conviction for engaging in sexual conduct, here: engaging in sexual conduct with "knowledge that [defendant] had been diagnosed as HIV-positive").

* Clayton v. Curtin, No. 05-71943, 2010 WL 5439729, at *2 (E.D. Mich. Dec. 28, 2010) (habeas petition involving conviction for male-male "sexual penetration by an HIV-infected person with an uninformed partner").

** People v. Clayton, No. 230328, 2002 WL 31058331 (Mich. Ct. App. Sept. 13, 2002) (underlying criminal case).

* State v. Eversole, 912 N.E.2d 643, 645 (Ohio Ct. App. 2009) (affirming Eversole violated terms of judicial release because he, as "a carrier of HIV/AIDS," engaged "in sexual conduct with [Hutchins, a man], ... without prior approval of the court as to such said individual" (internal quotation marks omitted); facts also point to cross-sex relations in the background of the case).

** State v. Eversole, 912 N.E.2d 643,648--49 (Ohio Ct. App. 2009) (Donovan, J., dissenting) (in the context of judicial supervision standards, suggesting that sexual conduct between consenting adults might be protected even if it entails the risk of exposure to or transmission of HIV).

* State v. Musser, 721 N.W.2d 734, 741-45 (Iowa 2006) (upholding state statute requiring HIV-positive persons to disclose status to sexual partners as constitutionally valid under First Amendment notwithstanding that it compels speech and is not content neutral, because it "promotes a compelling state interest, and [is] narrowly tailored ... to promote this compelling interest"; in particular, the court noted that "[t]he statute does not absolutely prohibit an infected person from having sexual relations with another" and "does not compel public disclosure of an infected person's HIV status.").

* Commonwealth v. Cordoba, 902 A.2d 1280, 1289 (Pa. Super. Ct. 2006) (in a case involving what is described by the trial court as consensual male-male sex, evidently without actual transmission, court explains that sex without informing partner of HIV status is placing person "in danger of serious bodily injury because this conduct may have placed [the HIV-negative person] in danger of contracting HIV" and the trial court should have taken "judicial notice of this fact" and not have required "the Commonwealth to establish the likelihood of transmission of HIV").

* Mathonican v. State, 194 S.W.3d 59, 61 (Tex. App. 2006) (in case involving multiple sexual assaults against a male victim by Mathonican, additional finding that "during the commission of the offenses, Mathonican used or exhibited a deadly weapon, that is, his HIV-positive seminal fluid," new trial ordered, though "deadly weapon finding" could be sought again in new trial since "the evidence was legally sufficient to support that finding").

* United States v. Womack, 29 M.J. 88, 88-89 (C.M.A. 1989) (affirming the conviction of male defendant for "disobeying a 'safe sex' order" issued after he was "diagnosed as being infected with" HIV against a challenge to the order's constitutionality).

United States v. Morris, 25 M.J. 579, 579 (A.C.M.R. 1987) ("find[ing] that the military judge erred in suppressing the [HIV] test results" since defendant Morris was "charged with offenses alleging, inter alia, that, while knowing that he was infected with HIV and that it (HIV) can be sexually transmitted, he engaged in sexual intercourse and sodomy with [gender unspecified] others").

** Soldier Who Knew He Carried AIDS Virus Faces Assault Charges, N.Y. TIMES, Apr. 4, 1987, at 31 (discussing charges against Pie. Adrian G. Morris, Jr. for "aggravated assault for reportedly having sexual relations with two other soldiers when he knew he carried the AIDS virus"; according to an attorney for Morris, the Army's "theory is the AIDS virus is the weapon used in the assault"; one soldier Morris was accused of having sexual relations with was a man, the other, a woman; "neither ... had tested positive for the AIDS virus but.., the female soldier was impregnated"; the article separately discusses the case of "a homeless man who pleaded guilty to manslaughter sa[ying] he had killed a male lover who said he had AIDS after they had a sexual encounter").

* Scott Roberts, Montana: Man Charged with Infecting Partner with HIV Also Accused of Killing 55 Dogs, PINKNEWS.CO.UK, Dec. 6, 2012, http://www.pinknews. charges against Peter Northcutt for, inter alia, "fail[ing] to disclose his medical condition to a man with whom he had a three-year sexual relationship"; "[t]he man, referred to as T.V. in court records, later contracted HIV from the defendant, who has been HIV positive since 1997"; Northcutt denied the felony endangerment charge).

* Jaime E. Galvan, Suspect to Date Rape Victim: I Just Gave You HIV, KHOU.COM, Nov. 30, 2012, (discussing arrest of Jason B. Jackson "on a charge that he sexually assaulted a man he met in northeast Houston over the summer"; "[a]fter the assault, Jackson told the victim that he was HIV positive and that he had just infected him with the virus, the affidavit states"; "[i]t's not clear if Jackson is actually HIV positive").

* Gene Hartley, HIV-Positive Man Is Accused of Not Telling Sex Partner About Risk, KSPR, Nov. 8, 2012, (Tyler Clark, "charged ... with recklessly risking HIV infection of another person," said to face "a prison sentence of five to [fifteen] years if he's convicted"; "[t]he probable cause statement used as the basis of the charge says the other man told police that he and Clark had sexual relations last May 11 [;] [n]early three weeks later, Clark sent that man a text message in which he apologized for not telling him that he is HIV-positive.").

* United States Soldiers File Sexual Abuse Lawsuit in Federal Court, VALLEJO TIMES HERALD (Cal.), Sept. 29, 2012 (mentioning, inter alia, two cases, including one brought by Kole Welsh, in which "male soldiers allege that a superior officer invited them to his home, raped them and infected them with HIV").

* HIV-Infected Man Lied to Sex Partner, WOODTV.COM, Aug. 17, 2012, http://www., cited in HIV LAW & POLICY CENTER & POSITIVE JUSTICE PROJECT, PROSECUTIONS AND ARRESTS FOR HIV EXPOSURE IN THE UNITED STATES, 2008-2012, available at (last visited Apr. 15, 2013) (noting charges against Jeremy Merithew for "sexual penetration with [an] uninformed [male] partner" when he was HIV-positive).

* Jeff Reinitz, HIV Law Is Too Severe Given Risks, Critics Say, WATERLOO-CEDAR FALLS COURIER (Iowa), Feb. 5, 2012, available at 2012 WLNR 2559220 (discussing Rhoades v. Plendl and Donald Bogardus cases; Bogardus "is accused of having unprotected sex with another man three times in Black Hawk County between...

To continue reading