In criminalizing HIV transmission, the US and Canada lead a global war on women

The United States leads the world in prosecuting people for HIV transmission and exposure. Canada comes in second. All but two of Mexico’s 30 states criminalize HIV-status nondisclosure. North America leads the way … in a global war on women.

Globally, women bear the brunt of the HIV pandemic. In the United States, that’s particularly true for women of color. In the US, HIV-positive women of color face extraordinarily high rates of morbidity and mortality. They also report high rates of intimate partner violence. This doubles the risk of death for HIV-positive women. The house is a war zone, and then the State jumps in and intensifies it … through laws that universally and without distinction criminalize `everyone’ for nondisclosure of their status.

Women in abusive, toxic relationships are supposed to `share’ with their partners? It’s that simple? Cicely Bolden shared with her partner. He killed her. He justified his murder by claiming the disclosure drove him mad.

In October, the Supreme Court of Canada handed down two decisions concerning so-called criminal transmission. The Court claimed its decisions were meant to clarify some vagueness in a 1998 decision, R. v. Cuerrier. In that decision, the Court said people living with HIV and AIDS had to disclose their status before engaging in sex. To not do so constituted `fraud’. The two recent cases, R. v. Mabior and R. v. D.C., dismally clarified the Court’s understanding of what’s at stake here: risk.

Here’s the story of the D.C. case:

A woman living with HIV, D.C., had a partner for four years. The partner claims the first time they had sex together, she had not disclosed her status to him. When she did reveal her status, he said it was fine. They stayed together for four years. At some point, he became abusive and violent. Finally, he was convicted for beating D.C. and her son. That’s when he accused her of not disclosing her HIV+ status. Although she claimed that they used a condom the first time they had sex, the trial judge did not believe her and found that their first sexual encounter was unprotected. D.C. was convicted of sexual assault and aggravated assault for not disclosing her HIV status to her partner. The partner is HIV negative, by the way. On appeal, the Quebec Court of Appeal overturned D.C.’s convictions on the basis that, even if no condom had been used for that first sexual encounter, her viral load was undetectable at the time. Based on her viral load, there was no “significant risk” of transmission. Non-disclosure, thus, was not a crime. That’s the case Supreme Court of Canada heard.

The Court decided against D.C. and, in so doing, declared that the risk of AIDS is so great that those living with AIDS must disclose, use condoms, and have low viral loads if they are to avoid criminal prosecution.

According to the Canadian HIV/AIDS Legal Network, with this decision “the Supreme Court of Canada made the law even harsher for PHAs: people must now disclose their status before having sexual relations that pose a `realistic possibility’ of HIV transmission. But in the Court’s view, a `realistic possibility’ encompasses almost any risk, no matter how small.”

For the Court, the risk of disclosure, especially for women, means less than nothing. In its decision, the Court further codified the absolute lack of value of a woman’s life. It ignored study after study and legal argument after legal argument, some local and others international, which demonstrate that criminalization of HIV-positive status does not impede the spread of AIDS. The Court ignored as well innumerable studies and legal arguments that clarify the impossible position HIV-positive women in dependent as well as abusive relationships face when forced to disclose.

None of that mattered. All that mattered was `risk aversion.’

You know what has actually spread over the last decade? Criminalization of HIV disclosure. And you know who has pushed that spread? The United States Agency for International Development, USAID, which first funded and then `encouraged’ nations to adopt a so-called Model HIV/AIDS Law. Over 60 countries now criminalize HIV transmission or exposure. These laws do not protect women. These laws attack women and do them harm. It’s an active front in a global war on women, lead by the United States and Canada.


(Image Credit: Positive Women)


Iowa: Gay man gets 25 years for one-time non-disclosure to a single complainant

Nick Clayton Rhoades speaks at the World AIDS Conference

Given the things I write about on this blog, I thought I was inured to outrage.

However, the 25 year jail sentence for a gay man in Iowa earlier this week for not disclosing his HIV status prior to one-time sex with a man he met online, reaches new lows in the history of criminalisation. This is a potential human rights violation almost on par with Willie Campbell’s 35 year prison sentence for spitting. (I’m thinking about the Eighth Amendment’s Cruel and Unusual Punishment Clause, a discussion of which can be found here.)

The Waterloo and Cedar Falls Courier reports that Judge Bradley Harris sentenced 34 year-old Nick Clayton Rhoades to 25 years in prison, the maximum punishment under Iowa’s draconian (and mistitled) “criminal HIV transmission” laws, following a guilty plea. There was no tranmission: the male complainant has not tested HIV-positive, and it is now almost a year since the encounter. (The subtlety seems lost on the headline writer, who erroneously states:‘Plainfield man gets 25 years for transmitting HIV’ )

Not only was there no sentence reduction due to Mr Rhoades’ plea (after all, he saved the court a lot of time and money; and let’s face it, it was one person’s word against the other, which could have gone either way with a jury), but Judge Harris additionally placed Mr Rhoades on lifetime parole and ordered him to pay court costs and restitution.

In addition, he ordered that must Mr Rhoades must:

  • not contact the complainant for five years
  • register as a sex offender
  • and undergo a sex offender treatment programme.

“Simply because it happens regularly that people don’t disclose, doesn’t mean it’s safe,” Harris said. Despite improved treatments, he told Rhoades, contracting human immunodeficiency virus” does change your life, and you more than anyone else should know that.”


“One thing that makes this case difficult is that you don’t look dangerous; you don’t look like most of our criminals that sit here,” said Harris. “But the risk is still there, just like if you would have shot a gun.”

According to the report, Mr Rhoades met the male complainant, “in an Internet chat room” on June 26th 2008, and then went to his home to have sex.

Although the contact was consensual, the victim, who has since tested negative for HIV, said Rhoades denied he had any sexually transmitted infections. “I should have had the right to choose whether to be intimate with someone who was HIV positive,” the victim read in statement to the court. “Instead, Nick was manipulative and denied me that right. … He lied online, and he also lied to me in person when I asked him directly if he was ‘clean.’”

Rhoades said he doesn’t remember discussing his HIV status with the victim. He drank heavily and took prescription pills before having sex, a combination that he said clouded his judgement. In addition to HIV, the defendant also was being treated for herpes and genital human papillomavirus at the time of the incident, said assistant county attorney Linda Fangman.

Rhoades, who was diagnosed with HIV in 1998, was arrested in September. Living with the virus is like “carrying a concealed weapon,” he told the court, saying he felt guilty for exposing an unknowing individual to the disease.

“I always wanted to be part of the solution, and not part of the problem,” said Rhoades, who had previously participated in AIDS education efforts. “Clearly, I’ve fallen short in this case.”

Mr Rhoades sounds like a genuinely remorseful man. He believes that he should have disclosed his status, and didn’t. Even if you agree with HIV disclosure laws in general – notwithstanding arguments supporting the concept of shared responsibility of both parties under these circumstances, or the unreliability of disclosure as a way of protecting yourself from sexually transmitted infections – there really is absolutely no justification for this outrageously long prison sentence.

To put this into perspective. A year ago I reported on a 12 year HIV exposure sentence in Arkansas (where the maximum penalty is 30 years) for a man who did not disclose to his girlfriend. At the time, it was the longest sentence I’d heard of for a single complainant. This is a single act!

Notwithstanding Johnson Aziga’s likely life sentence after recently being found guilty of murder, the previous longest-ever sentence in Canada was 18 years, and that was for Carl Leone, with 15 complainants, including five who tested positive.

The longest sentence that I’m aware of in Europe has been for Christer Aggett, sentenced to 14 years in prison in Sweden, with a dozen complainants, two of whom tested positive, and half of whom were under 15.

In 2006, the Iowa Supreme Court upheld the law after Adam Musser, 25, appealed his four convictions – and 25-year-prison sentences – for having unprotected sex with four different women in 2002 and not telling them he was HIV-positive.

And yet, in 2007, a woman who also pleaded guilty after not disclosing her status to a single complainant during a three month relationship, had her 25 year prison sentence suspended and received four years probation.

Since Judge Harris has also ruled that he can adjust the sentence any time within the next 12 months (and there is already a precedent to suspend sentencing), I suggest that anyone who feels as outraged as I do, contact either Judge Harris, or Mary Stegmeir (, the journalist who reported the case at the Waterloo and Cedar Falls Courier.

About Judge Harris, from the Iowa Judicial Branch website:

District Court Judge, Bradley J. Harris: District 1B Judge Harris, Grundy Center, was appointed to the bench in 2007. He received his undergraduate degree from Loras College in 1976, and his law degree from the University of Iowa in 1980. Judge Harris is a member of the Iowa Bar Association, the Grundy County Bar Association, as well as the Iowa County Attorney Association. Prior to his appointment to the bench, he was a partner at the law firm of Kliebenstein, Heronimus, Schmidt, and Harris, and also served as the Assistant Grundy County Attorney from 1995 to 2003, and the Grundy County Attorney from 2003 to 2007. Judge Harris is married and has two children.

[Edwin J. Bernard’s blog, Criminal HIV Transmission, “focuses on prosecutions for sexual exposure to, or transmission of, HIV around the world”. HIV crimes. And where there’s crime, there’s prison. We thought the links might be interesting. Thanks to Edwin for his work, and for sharing it here.]

(Photo Credit: Frankfurter Allgemeine Gesellschaft / Peter-Philipp Schmitt)