The Criminal Transmission of HIV: A Proposal to Eliminate Iowa s Statute

Author:Jaclyn Schmitt Hermes

I. Introduction II. Hiv And Aids III. The Development Of Hiv Specific Laws IV. Iowa's Criminal Transmission Of Hiv Statute A. Iowa's Statute is Vague1. "Expose" is Vague 2. The Vagueness of "Bodily Fluid" May Make Kissing Illegal B. Iowa's Statute is Discriminatory1. Iowa's Statute Discriminates Against the Entire HIV-Positive Population 2. Iowa's Statute Discriminates Against HIV-Positive... (see full summary)


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I Introduction

Imagine being an eighteen-year-old boy. Prom is right around the corner and you have finally mustered enough courage to ask the girl next door to go with you. With flowers in hand, you nervously proceed to her house. As you ring the doorbell, you recite the words to yourself over and over again. "If only she says yes," you say to yourself, "I will be the happiest guy in the world." Finally, the door opens and your dream girl is standing there smiling back at you. Your voice trembles and your heart races as you ask her to the prom. To your amazement, she says yes! You cannot believe it; you are going to the prom with the prettiest girl in school!

You spend the next two weeks planning the perfect date. You want everything to be just right. Finally, the big day arrives. Standing in her living room, you glance toward the staircase and see her descend the stairs. You vaguely hear her mother complimenting her and snapping pictures, but your mind is completely focused on the girl standing before you. The night could not be more perfect.

You spend the evening dancing and laughing, but sadly the night has to end. Walking up the path to her door, your heart once again begins to race. At her door, you turn to her. You lock eyes and smile. She lets out a nervous laugh. You take a deep breath, tell yourself you can do it, and lean forward . . . and tell her you are HIV-positive and you need her consent to kiss her.

Under Iowa law, this disclosure, even for a kiss, may be required.1 If an Page 474 individual fails to disclose his/her HIV-positive status, he/she could be guilty of a Class B felony.2 Circumstances such as the prom night scenario indicate that the State of Iowa should eliminate or at least amend its criminal transmission of HIV statute.

The statute has several problems. First, it is vague because it does not adequately define what conduct it prohibits. Second, it discriminates against all HIV-positive individuals, particularly those HIV-positive individuals who were responsible enough to get tested. Third, the Iowa legislature's classification of the offense as a Class B felony, punishable by up to twenty-five years in prison, is excessive. Attempted murder or aggravated assault are both adequate to punish those individuals who truly wish to inflict the virus on someone else. Iowa's current statute will too often punish HIV-positive individuals who simply want the ability to have a relationship. If the state is unwilling to eliminate its statute, then Iowa should follow California's lead and require a specific intent element of the crime in order for an HIV-positive individual to be punished as a felon.3

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This paper will first provide a brief background on HIV and AIDS. It will then describe the recent development of HIV laws in the United States. Finally, this paper will discuss why the Iowa criminal transmission of HIV statute is flawed.

II Hiv And Aids

The human immunodeficiency virus (HIV) can cause Acquired Immune Deficiency Syndrome (AIDS).4 HIV attacks the body by destroying T-helper lymphocytes, which are essential for the immune system to fight disease.5 HIV itself does not lead to death, but its toll on the body's immune system leaves the body vulnerable to a variety of life-threatening illnesses, often called "opportunistic infections."6

HIV also causes "AIDS-Related Complex," which is non-fatal and less severe than AIDS.7 "AIDS-Related Complex" includes symptoms found in some HIV-positive individuals.8 For example, "AIDS-Related Complex" refers to such maladies as fever, weight loss, swollen lymph nodes, diarrhea, herpes, fungus infection of mouth and throat, and hairy leukoplakia.9 Doctors also use "AIDS-Related Complex" to describe an unexplained chronic deficiency of white blood cells or a poorly functioning lymphatic system.10 All of these maladies appear to be related to HIV.11

Researchers have found HIV in blood, semen, saliva, tears, breast milk, and female genital tract secretions.12 The known modes of HIV transmission are: (1) by an injection of infected blood, (2) by unprotected sex with an infected person, (3) by sharing needles, (4) by an infected mother to a fetus, and (5) by an Page 476 infected mother to a newborn through breast-feeding.13 However, even with direct exposure to the virus, HIV transmission is not certain to occur.14

HIV is not spread by casual contact, such as by hugging or by touching.15Kissing, however, can transmit HIV.16 The Centers for Disease Control states, Open-mouth kissing is considered a very low-risk activity for the transmission of HIV. However, prolonged open-mouth kissing could damage the mouth or lips and allow HIV to pass from an infected person to a partner and then enter the body through cuts and sores in the mouth. Because of this possible risk, the CDC recommends against open-mouth kissing with an infected partner.17

In fact, there is at least one documented instance of possible HIV transmission through kissing.18 Once infected, an HIV-positive individual may not exhibit any symptoms for up to ten years.19 Doctors do not diagnose an HIV-positive individual with AIDS until serious symptoms start to appear and he/she develops an opportunistic infection or his/her CD4 lymphocyte count drops below 200 (a normal count is between 600 and 1000).20 The Centers for Disease Control reports that between 800,000 to 900,000 Americans presently carry HIV, with approximately 40,000 new infections each year.21 In the year 2000 alone, HIV Page 477 newly infected 5.3 million people worldwide.22 Sadly, the year 2000 also brought 3 million AIDS-related deaths, 500,000 of which were children.23 It is clear the public must take steps to prevent the spread of AIDS.

III The Development Of Hiv Specific Laws

In an effort to prevent the spread of AIDS, states originally punished intentional HIV transmission as if it was a traditional offense.24 Prosecutors often looked to homicide, attempted homicide, rape, criminal assault, reckless endangerment, prostitution, and sexually transmitted disease statutes to punish those who intentionally attempted to transmit HIV.25 The difficulty of proving mens rea and causation in HIV cases, however, led some states to move towards statutes that specifically criminalize the transmission of HIV.26 It is worth noting, however, that the 1988 Presidential Commission on the Human Immunodeficiency Virus Epidemic expressly urged states to use these HIV specific statutes only as a last resort.27

States that adopt these HIV specific statutes vary in the level of intent required, the type of conduct prohibited, and the level of punishment imposed.28For example, in North Dakota, though criminal transmission of HIV is a severe felony, the statute is very specific regarding what type of conduct that it prohibits. It is a Class A felony to knowingly transfer HIV through semen, vaginal secretum, or blood by genital, oral, or anal contact or by shared hypodermic needle.29 Consent is a defense in North Dakota.30

In Maryland, if an individual knowingly transfers or attempts to transfer HIV, he/she is only guilty of a misdemeanor and subject to a maximum fine of $2,500 or a maximum sentence of three years, or both.31 In Illinois, it is a Class Two felony for a knowing carrier of HIV to transmit the virus through intimate Page 478 contact.32 Though HIV transmission is a felony in Illinois, the offense only carries a possible three to seven year prison term, and those convicted are eligible for probation.33 It is worth noting that both Illinois and Iowa have similar wording in their statutes, but while Illinois only punishes the crime for three to seven years, Iowa's statute punishes the crime for up to twenty-five years.34

In California, when an HIV-positive individual exposes another through unprotected sexual activity with the specific intent to inflict the other person with HIV, that person commits a felony punishable for three, five, or eight years.35 Proof that the person knew of his HIV status without additional evidence is NOT enough to prove specific intent.36 Thus, in California, the individual must act with an actual intent to transmit HIV. Knowledge of one's HIV-positive status is simply not enough to be guilty of this felony in California.

Further, California unambiguously defines what conduct the statute prohibits. California's statute specifically defines sexual activity as "insertive vaginal or anal intercourse on the part of an infected male, receptive consensual vaginal intercourse on the part of an infected woman with a male partner, or receptive consensual anal intercourse on the part of an infected man or woman with a male partner."37 In California there is no doubt that kissing alone does not violate the statute. Further, California only makes it a crime if the sexual activity is performed without the use of a condom.38

IV Iowa's Criminal Transmission Of Hiv Statute

Iowa's statute39 differs from California's in several respects. First, Iowa's statute punishes the offense for up to twenty-five years, even though it does not require any actual intent to transmit the virus.40 This differs greatly from California's approach that requires specific intent to transmit the virus, and even Page 479 then the offense is only punishable for...

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