In 2013, In America, Being HIV+ and Having Sex Is Considered A Crime

Imagine being at work one day, just doing your job, whatever that may be, and three armed police officers come in to find you. They take you to a nearby hospital and order the nurse there to draw your blood. Meanwhile, across town your house is being searched, deputies looking for drugs; not illegal drugs, but lifesaving prescription medications. The blood work reveals you’re HIV-positive, as do the medications found in your home. You’re put on trial, accused of a crime, and the judge looks at you and says:

“One thing that makes this case difficult is you don’t look like our usual criminals. Often times for the court it is easy to tell when someone is dangerous. They pull the gun. They have done an armed robbery. But you created a situation that was just as dangerous as anyone who did that.”

You’re sentenced to twenty-five years in prison for having consensual sex without disclosing your HIV status. Now, the “official” charge is “criminal transmission of HIV” and yet no transmission took place; your sex partner did not contract the virus because you used a condom, but you’re a criminal.

This is what happened, literally, to Nick Rhoades of Iowa, after he had consensual sex with Adam Plendl.

Being HIV-positive is a crime in America.

Even though most healthcare officials and HIV/AIDS experts say the likelihood of Rhoades infecting Plendl were “likely zero or near zero.”

Oh, and even though Nick Rhoades’ sentence was finally reduced to five years’ probation, for the rest of his life he will be considered a sexual offender who is legally barred from living with anyone under the age of fourteen, even his own family members.

It’s a sick story — a sick, true story — but not the only one of its kind.

In the last ten years alone, there have been some 541 cases in which people were convicted of, or pleaded guilty to, criminal charges for not disclosing their HIV status. In at least 35 states there are laws that specifically criminalize exposing another person to HIV, and in 29 of those states, that “crime” is a felony. And yet, in all of those states, none of the laws require transmission to occur, though people with HIV have been sentenced to years — even decades — in jail, even though they used condoms, or some form of precaution to protect their partners.

Being HIV-positive is a crime in America.

Some people with HIV have even been arrested, tried, and served jail time for spitting, scratching or biting, even though the Centers for Disease Control [CDC] says spitting and scratching cannot transmit HIV, and transmission through biting “is very rare and involves very specific circumstances.”

Now, yes, HIV is transmissible, and yes, people need to take precautions, but in many cases even people using protection, and in cases where the HIV-negative partner did not contract the virus, men and women have been arrested and treated as criminals for being HIV.

And many people — law enforcement officials and legislators — defend these laws, saying they deter people from spreading the virus and set a standard for disclosure and precautions; sadly, even some people with HIV support the laws. In New Jersey, for instance, a recent survey of HIV-positive people found that they believe that people with HIV bear most of the responsibility to protect their partners, and more than 50% approve of the kinds of laws that sent Nick Rhoades to prison.

But it isn’t just grown men and women being treated like criminals for having HIV; it’s children, too.

In September, a disability rights group accused the Pea Ridge, Arkansas school district of kicking out three siblings because school officials believed that members of their family were HIV-positive. The school released a statement acknowledging that it had “required some students to provide test results regarding their HIV status in order to formulate a safe and appropriate education plan for those children.”

In other cases, people with HIV have been met with violence — and even death — after disclosing their status. Last month in Dallas, Larry Dunn was sentenced to 40 years in prison for murdering his HIV-positive lover; he used a kitchen knife to stab and kill Cicely Bolden, a mother of two, after she told him about her HIV status.

“She killed me, so I killed her.”—Larry Dunn

Now, to be fair, there are cases where the HIV person doesn’t disclose their status, and where protection isn’t used and the negative partner becomes infected. To me, that is a crime, and that deserves some kind of punishment.

In 1997 in New York, Nushawn Williams was accused of deliberately infecting at least 13 people, including two underage girls, with HIV. Williams pleaded guilty to two counts of statutory rape and one count of reckless endangerment. When his 12-year sentence ended in 2010, state officials kept him confined under laws that allow dangerous psychiatric patients to be locked up. He remains behind bars.

Williams was a criminal for knowingly spreading, or attempting to spread HIV, but many people, most people, are not committing any crime at all, unless the crime is being HIV.

In 2011, for example, Nebraska passed a measure that made biting or spitting on public safety officers a misdemeanor punishable by one year in jail and a $1,000 fine; but, if the offender is HIV-positive, the crime is suddenly a felony punishable by up to five years in prison and a $10,000 fine.

HIV is a criminal offense.

In Waterloo, Iowa, Donald Bogardus, a church-going, HIV-positive gay man who also suffers from cerebral palsy, recently pleaded guilty to charges of failing to disclose his status to a partner.

“I wanted to tell him, but when I went to say it, I clammed up. So many things came across my mind. I was afraid he was going to blab it out to everybody. But I still regret not telling him. I really do.”— Donald Bogardus

Bogardus currently works as a nurse’s assistant, but his guilty plea will place him on the state’s sex offender registry, barring him from working with patients in nursing homes.

In St. Louis, Nigaila Gibbs was 20 years old when police arrested her on a charge of prostitution during an undercover sting operation. Gibbs, who was born with HIV, began prostituting herself after aging out of Missouri’s foster care system. Police accused her of having sex with “hundreds” of clients and failing to warn them about her HIV status, although Gibbs told police she always practiced safe sex.

St. Louis County police encouraged any of Gibb’s potential victims to come forward, and three men stepped up, though not one of them was found to be infected. Gibbs ultimately pleaded guilty to “performing an act of prostitution” while knowingly infected with HIV and was sentenced to five years in Missouri state prison.

Thomas Tompkins was serving his last month in prison at Ohio’s Richland Correctional Institution when a guard caught him performing oral sex on another inmate in the library. State police questioned the two inmates about whether the encounter was consensual, and both men agreed it was, but when Tompkins acknowledged that he had not disclosed his HIV-positive status to the other inmate, prosecutors accused him of felonious assault with HIV.

Doctors, HIV/AIDS experts and the CDC all agree that a man who receives oral sex has virtually zero chance of contracting HIV, but Thomas Tompkins, who pleaded guilty to a reduced charge of aggravated assault, had an extra year added to his sentence.

And in a 2010 case from right here in South Carolina, Jesus Cazares spent five months in the Marion County jail awaiting trial for “exposing another to HIV.” He pleaded guilty and was credited with time served, but not before U.S. Immigrations and Customs Enforcement [ICE] filed to detain him on immigration charges. The next year Cazares was released into ICE custody and “removed” to Mexico.

Back to the Nick Rhoades case.

Nick Rhoades must wear an
ankle  monitor now because of
the crime of HIV

When Adam Plendl learned from friends that Rhoades was HIV positive he panicked at the idea that he had been exposed to HIV, and immediately went to get tested; he was negative, he remains negative to this day.

Adam Plendl was looking for a doctor to prescribe a short-term, emergency regimen of HIV drugs — kind of a “morning after” anti-HIV regimen that, if started within 72 hours of exposure can stop infection from taking root — but the staff had no idea what he was talking about so he moved to another facility.

There he encountered Brandy Weida-Cooper, a registered nurse, admitted Plendl to the ER and made the call to involve police. Adam Plendl says he never planned to press charges against Rhoades, and to this day, Weida-Cooper won’t say why she called the police, but it was her call that started Nick Rhoades’ journey to prison for being HIV-positive.

Whether Adam Plendl faced a significant risk for contracting HIV from Rhoades, or if he was even exposed to the virus during their encounter remains unclear. Both men agree that Rhoades wore a condom during intercourse—though Plendl claims it fell off—but neither man recalls whether Rhoades ejaculated during the encounter.

And Nick Rhoades was taking a cocktail of antiretroviral drugs at the time and his medical records show they were working; his HIV was at an undetectable level and most studies say that his viral load in similar patients make them 96% less likely to pass HIV on to a partner.

However, the men did not use a condom when Plendl performed oral sex on Rhoades, and prosecutors argued that act could have exposed him to pre-seminal fluid containing HIV, even though, according to the CDC, while HIV transmission from oral sex has been documented, it’s rare, and oral sex is considered a low risk activity.

And even though he never wanted to file charges against Rhoades, in the days after his hospital visit, Plendl began cooperating with Mark Abernathy, the detective who assigned to the case. Plendl gave Abernathy a copy of Rhoades’ Internet profile, which listed his HIV status as negative, and he says he asked Nick Rhoades if he was “clean”; “I always ask anyone, before anything, ‘Is your profile correct with your HIV status?’”

Nick Rhoades doesn’t remember that, though he admits to lying about his HIV status online.

“That was different. That was a public openness.”—Nick Rhoades

He’d told his close friends and family, but telling random strangers perusing a gay dating site frightened him because of the stigma associated with HIV. And Rhoades feared what might have happened if his status came out to his employers.

After their encounter, Rhoades left several voicemails on Plendl’s phone: “I wanted to get together with him. I wanted to sit down and have the conversation about my HIV status. I didn’t realize that the reason he wasn’t returning my phone calls was because he was already in contact with law enforcement.”

Plendl finally called Rhoades back, with his phone wired to police recording equipment, and confronted Rhoades, who confirmed that he was HIV-positive and that the men had engaged in unprotected oral sex during their encounter.

Four days later, a Black Hawk County judge approved Detective Abernathy’s request for a search warrant, allowing him to seize Rhoades’ medical records, prescriptions and a sample of his blood.

“They came to my work. I think it was three openly-armed police detectives from an adjacent city.”—Nick Rhoades

At the sheriff’s station, Rhoades was interviewed about his encounter with Plendl. He admitted to knowing Plendl, but when questioned about having sex with him, out of fear, Rhoades lied and said they did not; it was then he was told about the recorded phone call. The interrogation abruptly stopped; he invoked his right to an attorney and was then taken to a hospital where his blood was drawn and tested.

As the case progressed, Rhoades pleaded with Plendl not to press charges: “I’m just calling to absolutely get on my knees and beg you to please drop these charges. This has all just gone absolutely crazy. Please consider — again, I absolutely beg you, beg you, beg you to please drop these charges.”

But a criminal complaint was submitted to the court and county prosecutors accused Nick Rhoades of violating the state’s HIV exposure law and he was arrested. Nick Rhoades pleaded not guilty, and the judge set his bond at $250,000; since he didn’t have the money, and neither did his family, Nick Rhoades spent seven months in county jail awaiting trial.

For the first 20 days, he was placed in solitary confinement and was allowed one 30-minute visit each week. He lived in the jail’s secured housing unit, or SHU, and his HIV medications were delivered through a slot in the cell door. He was eventually transferred to the jail’s high-security wing and was only allowed to leave his cell twice, for medical appointments.

Rhoades had grown exhausted and frayed from jail and the uncertainty, so with his lawyer he deiced to enter a guilty plea and hope for a lenient sentence. But at the hearing, Judge Harris gave Rhoades the maximum sentence under Iowa’s law — 25 years in state prison; side note: the maximum sentence in Iowa law for sexually abusing a child is 10 years.

“Prison very rarely provides rehabilitation. You’re being sent there as a punishment.”—Judge Harris

The case garnered a lot of media attention, with Nick receiving all kinds of mail, for interviews, and from people who wanted to help. Judge Harris was also getting mail, including a letter from Jeanne Brager, a friend of Nick’s, who urged him to modify the sentence: “Murderers and child rapists receive less time than this young man did. He is not a man with a criminal mind. Prison will destroy him. He has far too much goodness and sensitivity to survive in such surroundings. He will simply wither away and die.”

And Harris heard from Mark Kassis, an HIV/AIDS advocate in Ames, Iowa, who argued that jailing people with HIV for failing to disclose their status set a dangerous precedent and would “deepen the stigma around the disease” that “actually leads to the spread of HIV.”

The letters seemed to work. A few months later, Rhoades got a call from his attorney who said Judge Harris approached him and said, “Now would be a good time to apply for that [sentence] reconsideration.’ … ‘You apply for it, I’m going to grant it.”

And on September 11, 2009, Harris granted Rhoades’ application for a sentence reduction, lowering his sentence to five years of supervised probation. Rhoades, who now lives in Waterloo, must obey an 11 p.m. curfew, wear a GPS monitoring bracelet, cannot use social media sites such as Facebook or Twitter, cannot drink alcohol and must obtain permission from a probation officer to leave the county, even to visit his parents in nearby Plainfield.

He remains a registered sex offender and, as a convicted felon, he cannot vote. He is still trying to get his conviction overturned.

For the crime of having HIV and keeping it a secret. In a country where some people won’t even say HIV out of fear; where some schools—even colleges and universities—won’t discuss HIV.

Is it any wonder people keep it silent.

Is it any wonder why some say that silence = death?

Even Adam Plendl, the man Rhoades had sex with, thinks the law is too harsh.

“Do I think he needs to be locked up forever? No. Do I think these laws need to be revisited? Yes.”

At least 35 states have criminal laws that punish HIV-positive
people for exposing others to the virus, even if they take precautions
such as using a condom.

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