DWI Defense Lawyer Douglas Kans Articles When Does Sex Become Criminal?

When Does Sex Become Criminal?

Oct. 8, 2013 12:49p

A series of recent cases, one from Minnesota, one from Iowa and another from our neighbors to the North have dealt with the issue of criminalizing sexual contact among adults. The cases have raised questions about at what point the law is able to insert itself into areas that are typically viewed as strictly private matters. States have struggled with the cases and a lack of uniformity in outcomes has some observers eager for clarification.

The most recent such case came from Ontario, Canada where a woman was recently sentenced to 39 months in prison for failing to tell a man that she was HIV-positive before the two had sex. The man was a casual acquaintance and ended up paying her $20 after the encounter. Police say the two engaged in unprotected sexual contact, something that clearly increased the man’s chance of contracting HIV. Despite the unprotected contact, the man remains HIV negative.

The fact that the man never contracted the disease is irrelevant under Canadian law. The law of the land was clarified last year when the Canadian Supreme Court issued an important decision, which said that Canadians suffering from HIV have a legal obligation to reveal their status to partners prior to engaging in any sexual contact. The only caveat being that the sexual contact had to involve a realistic chance that HIV could be transmitted before such a disclosure was required.

This issue leads directly to an Iowa case where a 39-year-old man recently appealed his conviction for criminal transmission of HIV. Nick Rhoades was charged after having sex with a man he met on the Internet without first revealing his HIV positive status. Many legal experts have condemned the decision as being based on an outdated law.

In this case, the unwitting partner never contracted HIV, something that Rhoades’ attorneys argue is because there was never any real risk of exposure. Rhoades’ lawyers claim that though their client engaged in unprotected oral sex with his partner, the lack of ejaculation on Rhoades’ part meant that the chance of actual transmission was next to, if not actually, impossible.

The Iowa Court of Appeals ruled that Rhoades’ actions met the statutory definition of the crime and thus his conviction must stand. The Court noted that the state legislature should take action to change the language of the law, something that was proposed during the most recent session. Under current state law a conviction for criminal transmission of HIV carries a 25-year maximum prison sentence. Under the recently proposed law, someone in Rhoades’ position would face at most a misdemeanor charge.

Here in a Minnesota, a 32-year-old man recently had his conviction for attempted first-degree assault tossed by the Minnesota Supreme Court after he engaged in sexual encounters with a man who ultimately contracted HIV. In this case, Daniel Rick fully informed his partner of his status prior to any sexual contact. Despite this declaration, Rick was still convicted of a crime by the jury who misinterpreted a statute that confusingly mentioned the crime of transferring communicable diseases through sperm donation. The Supreme Court ruled that the statutory language was ambiguous and that Rick’s conviction ought to thus be overturned.

Though many people have been quick to point out the danger these individuals have exposed their unwitting partners to, others have said that the cases send a dangerous message to the public. The message appears to be that so long as you do not have HIV you are permitted to engage in as much dangerous, unprotected sex as you’d like. Critics of the cases say that the recent decisions have taken away the onus of protecting oneself by questioning your potential sexual partners. These critics say that the recent criminal prosecutions send the clear message that the law exists to protect those who refuse to take on the responsibility of asking their potential partners’ status. Whether this is a good thing or a bad thing needs to be worked out and clarified in state legislatures across the country to avoid continued discrepancies in how such cases are handled.

Source: “Iowa man convicted in HIV case loses appeal,” by, published at DesMoinesRegister.com.

Source: “Minnesota Supreme Court: HIV-positive man wrongly convicted of passing disease,” by Abby Simons, published at StarTribune.com.

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