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Imprisoned over HIV: One man's story

By Saundra Young, CNN Sr. Medical Producer
November 10, 2012 -- Updated 0142 GMT (0942 HKT)
Nick Rhoades used a condom, but didn't tell his partner he was HIV positive.
Nick Rhoades used a condom, but didn't tell his partner he was HIV positive.
STORY HIGHLIGHTS
  • Nick Rhoades was charged with a felony after a 2008 encounter
  • Federal, state laws differ on criminalization of HIV
  • Critics say the laws should be updated or even repealed
  • A prosecutor points out laws should cover intentional transmission

(CNN) -- The nightmare Nick Rhoades has been living the past four years began after a one-time sexual encounter with another Iowa man, Adam Plendl.

It was June 2008. The 34-year-old Rhoades, who is HIV positive, says he was on antiretroviral medications. His viral load -- the amount of virus in his blood -- at the time was undetectable and he says he wore a condom. But he did not disclose his HIV status.

When Plendl found out, he went to a hospital to get treated. According the police report provided to CNN by Plendl, the hospital called police.

What happened next, Rhoades says, changed his life forever.

The former hotel administrator was arrested three months later. The official charge: criminal transmission of HIV -- a class B felony in Iowa, where the encounter occurred. Other crimes in this category include manslaughter, kidnapping, drug crimes and robbery.

CORRECTION
An earlier version of this article incorrectly stated that Adam Plendl contacted police because Nick Rhoades did not disclose his HIV status when the two had a one-time sexual encounter. According to the police report, it was a hospital employee who called police after Plendl sought treatment upon learning that Rhoades had HIV.

"I was in shock, trying to figure out where this was all going," Rhoades says. "My heart was racing a million miles an hour. I'd never been in trouble."

But Plendl, 22 at the time, says his life was forever changed as well, and that he was severely depressed and suffered panic attacks while waiting to find out if he was infected.

"It was 181 days of pure fear, that six-month window when you don't know," he says.

"Individuals that are HIV positive have a moral and currently legal obligation to inform any of their sexual partners of their positive status. Individuals should have the choice as to whether or not they would engage with someone who is HIV positive when they are not. In this case, that choice -- and what I also consider a right -- was not afforded to me."

In many countries, intentionally or recklessly infecting another person with HIV is a crime. In the United States, the Center for HIV Law and Policy says 32 states, including Iowa, and two territories -- Guam and the U.S. Virgin Islands -- have such laws on their books.

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In fact, GNP+, the Global Network of People Living with HIV/AIDS, lists the United States at the top of its list of 15 "hot spots" for HIV criminalization.

Now, a debate is under way regarding whether those laws need to be updated or even repealed.

'I felt pretty less than human'

Rhoades ended up pleading guilty. "I entered a guilty plea based on the advice of my attorney," he says. "I really didn't understand the law; I didn't understand it enough to know I shouldn't plead guilty."

So he went to jail, even though Plendl says hospital tests confirmed he was not infected with HIV. His bond was set at $250,000. Unable to post bail, Rhoades spent the next nine months in the Black Hawk County jail.

"I spent six weeks in solitary confinement," he says. "I was in a cell for 23 hours a day with a camera on 24 hours a day. I was allowed just one visit per week. I could not see out a window.

"For nine months I never saw the sun, except for one time on my way to a medical appointment. I was taken to that medical appointment in my orange jumpsuit and my cuffs and shackles. A mother and daughter saw me in the waiting room and got up and moved away from me. I felt pretty less than human."

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On September 11, 2009, Rhoades was sentenced to 25 years in prison. He was moved to the Clarinda Correctional Facility in Clarinda, Iowa, to begin serving that sentence.

After four months in Clarinda, and a successful letter-writing campaign to the judge calling for him to be freed, Rhoades was re-sentenced. His 25 years was reduced to the time he had served, plus five years of supervised probation. He also had to register as a sex offender, and will continue to do so for the rest of his life.

"When you're a sex offender there's so much stigma and people jump to conclusions," Rhoades says. "My life is forever changed. Do a Google search for my name and some pretty horrific stuff comes up. I have had to change a private medical condition and a private life to public domain.

"That's not to say I can't be happy, find employment, have a satisfying life, but it's never going to just go away."

Federal, state laws on criminalization

HIV criminalization laws began in 1990 when the federal Ryan White CARE Act passed. That law mandated that states criminalize intentional transmission of HIV in order to get funding for treatment and prevention programs.

Some states took it a step further than federal law required, defining intentional transmission as failing to disclose positive status to a sexual partner. The second time the act was reauthorized, in 2000, the requirement that states must criminalize intentional transmission was removed.

The criminalization laws were put in place to protect the public -- to prevent cases where someone with HIV knowingly exposed others to the virus and did not disclose their HIV status before a sexual encounter.

In 2010, for example, an HIV-positive man was arrested in Indiana for knowingly and intentionally exposing more than 100 women to the virus over five years. Earlier this year, a Michigan man admitted to police that he was trying to infect as many people as possible and told authorities that over the past three years, he had had unprotected sex with thousands of people.

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The laws vary state by state. Some target those who have HIV/AIDS and fail to disclose their status to their partner before an encounter.

According to the Center for HIV Law and Policy, 13 of those states have laws against HIV-positive people spitting or biting someone even though saliva does not transmit HIV. Others address needle sharing or blood, organ or semen donation.

Iowa passed its criminalization law in 1998, 10 years before Rhoades' fateful encounter.

It will be up to legislators in each state to review these laws and decide whether to make changes.

This year, Iowa Sen. Matt McCoy, a Democrat, called the laws retaliatory.

"This is medieval and it goes back to treating HIV as if it were leprosy and basically we need to repeal these laws," McCoy says. "They are draconian and they are outdated and we know so much more about the disease."

He introduced a bill to repeal and modernize it to include HIV in the contagious disease section of the Iowa code, where penalties for transmission are lower. Currently, the law has a separate section that relates only to HIV.

His bill didn't make it out of subcommittee. He plans to reintroduce another in the legislative session beginning in January.

"Some good questions are being asked about these laws, and I don't believe it hurts for them to be entered in the discussions we will have next session," says Iowa Sen. David Johnson, assistant minority leader for the Senate Republican Caucus.

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At the 19th International AIDS Conference in Washington last week, the Positive Justice Project, launched by the Center for HIV Law and Policy, released a national consensus statement calling on federal and state officials to modernize laws and eliminate HIV-specific statutes.

Catherine Hanssens, executive director of the Center for HIV Law and Policy, says HIV criminalization is unjust, bad public health policy and is a barrier to testing -- if a person doesn't know their status, they can't be charged with nondisclosure. She says criminalization is fueling the epidemic rather than reducing it.

"We believe it's necessary to modernize criminal laws to eliminate HIV-specific statutes and ensure that any prosecution on the basis of HIV or any other STIs requires real proof that the person intended to do serious harm, proof that the person engaged in behavior likely to cause that harm, proof that the conduct did in fact result in the harm intended, and punishment that is proportionate to the actual harm caused," Hanssens said.

"In Tennessee, for example, HIV criminal law allows up to a 15-year sentence and lifetime sex offender registration for a single exposure offense, while reckless endangerment with a deadly weapon has a maximum penalty of six years," she says.

"In Ohio, so-called HIV exposure results in a far harsher sentence than vehicular homicide or manslaughter. You will find similar disparities in a number of other states, from Georgia to California."

But those are not Hanssens' only concerns. She says available data shows that HIV criminalization disproportionately affects people of color, in particular African-American men.

"The availability of the criminal law to pursue so-called HIV exposure and failure to disclose cases can serve as a proxy for pursuing people on the basis of race, sexual orientation -- society's outlaws," Hanssens says.

"...It is just not appropriate -- even in those relatively rare cases when HIV transmission actually occurs -- to treat people with HIV as dangerous felons, sex offenders and murderers who deserve decades in prison for a disease that all of us can and must be empowered to protect ourselves against," she says.

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However, Scott Burns, executive director of the National District Attorneys Association, says these laws should not be repealed.

"I think I speak for most prosecutors in stating that in certain circumstances, there certainly should be a criminal statute where people should be punished for knowingly, intentionally infecting someone with the HIV virus," Burns said.

"Certainly the law should catch up with the science and people ought not to be held responsible for acts that would not infect someone with HIV. You can be held guilty of assault for biting someone or spitting in someone's face, but there ought to be laws where someone intentionally or intends to intentionally infect somebody.

"For example, if someone with HIV has unprotected sex with somebody who does not, and doesn't reveal that or doesn't disclose that and the other person becomes HIV-positive, I think that's unconscionable."

Rep. Barbara Lee, D-California, took advantage of the international focus on the disease last week by raising the issue of criminalization during the conference's opening ceremony: "We can and we must repeal laws and politically motivated policies that violate human rights."

Lee has been a leader in the fight against HIV/AIDS and has for years fought to repeal laws she calls unfair and discriminatory. Last year, she introduced a bill that creates incentives for states to reform their criminalization policies.

"Laws that place an additional burden on HIV-positive individuals because of their HIV status lag far behind the medical advances and scientific discoveries in the fight against the epidemic," says Lee. "Instead of progress against the disease and protection for people living with HIV/AIDS, criminalization laws breed fear, discrimination, distrust and hatred."

Although the country has made significant advances in the global fight against the disease, there is still a lot of work to do here at home, she says.

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"The decriminalization of HIV/AIDS is one way we can reduce stigma in our communities, while fighting the epidemic in a rational, holistic and truly rights-based fashion."

Rhoades' case: Where it's headed

In Iowa, Rhoades is fighting to have his conviction thrown out. His new lawyer, Scott Schoettes with Lambda Legal, has appealed his conviction to the Iowa Supreme Court.

Schoettes says the conviction should be overturned because Rhoades wore a condom. Schoettes also says Rhoades' former attorney never explained to him that the statute requires proof that an HIV-positive person intentionally tried to infect the victim.

"What drives these laws is ignorance regarding the real routes and risks of transmission," Schoettes said. "It's much harder to transmit than people think, and I think the sentences are driven by the misunderstanding of the current-day consequences of living with HIV."

The laws, Schoettes says, are being used to stigmatize and marginalize people with HIV.

"We treat people who are being prosecuted under these laws as if they are violent sex offenders, when most of them have engaged in a consensual act with another adult," he says. "If you engage in safe sex, you have not committed a crime. If you put on a condom, you have engaged in safe sex. However, this is not the way the law was applied, certainly not in Nick's case."

Plendl, however, disagrees. "The argument that since a condom was used there was no intent to transmit is a false statement," he says.

"While I realize that medical research reflects a significantly low number of HIV transmissions occur through oral exposure, in any event prior to the sexual intercourse with the defendant in this case, there was oral exposure to seminal fluid, which does contain and can transmit the HIV virus."

Plendl believes some state laws need to be modified with regards to maximum sentencing, but should not be repealed under any circumstances.

"I do believe that the statutory maximum sentence of 25 years in prison under Iowa law probably is too harsh," Plendl says. "However, the defendant in this case is not serving a 25-year sentence any longer. Furthermore, to have no consequences for this type of crime and irresponsible behavior seems completely illogical."

The Black Hawk County prosecutor in Rhoades' case did not return multiple calls from CNN.

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A hearing in Rhoades' case has been scheduled for August 15. Schoettes expects the new trial to begin late this year or in early 2013.

"It is our fervent hope and belief that this conviction should be overturned, and that's what we're working for on Nick's behalf," he says.

"If the Iowa Supreme Court does a careful review of the law, it should see that no crime was committed here. We hope to take away some of the worse consequences of this prosecution for Nick. But as long as the law is on the books, this can happen to someone else."

Still, for Rhoades, life has been irrevocably changed.

"I have to undergo a polygraph test every six months," he says. "My house is subject to search and seizure at the whim of the probation officer.

"I am not allowed to have an e-mail account, instant messaging, not allowed on any social networking sites. I have to register all vehicles I drive with the local sheriff's department ... I have a midnight curfew."

He's working as a hotel front desk clerk and also for the Center for HIV Law and Policy, but finding employment has been difficult. He has found it hard to shake the past and move forward amid uncertainty concerning his case.

What's the worst consequence of all?

"I am really close to my nieces and nephews. I have six of them," Rhoades said. "I am not allowed to be alone with a niece or nephew or any child. My brother could be charged with a felony if he left me in the room alone with my niece or nephew.

"I so fear a violation of my probation -- I still spend time with my niece and nephew, but not to the degree that I used to because I am afraid."

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