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On September 11, the Iowa Court of
Appeals heard arguments in a case seeking to overturn the 2009 conviction of a
man charged with criminal HIV transmission. The case hinged upon an incident in
which the man, who knew he had HIV, failed to disclose his status before having
protected sex with another man. The new sexual partner also performed an oral
sex act on the HIV-infected man, who did not ejaculate at the time. The new
sexual partner later reported the incident to the police.
One legal precedent for the case
stemmed from the Iowa Supreme Court’s 2006 decision to uphold an HIV-infected
man’s conviction for exposing his partner to semen during oral sex. Christopher
Clark, a Lambda Legal senior staff attorney, explained why the Iowa Court of
Appeals should not follow this precedent.
Clark stated that both parties
agreed the HIV-infected man did not ejaculate during oral sex, and the
HIV-infected man’s viral load was so low it was undetectable, according to his
doctor’s tests. CDC has reported reduced risk of HIV transmission through oral
sex, and there was no medical consensus on HIV transmission via oral sex
without ejaculation.
Iowa’s Assistant Attorney General
Kevin Cmelik argued that the state’s statute aimed to ensure that HIV-infected
people disclosed their status to their sexual partners, who then could make an
informed decision about the risk of HIV infection from protected or unprotected
sex. Cmelik also argued that a 2001 court ruling that an HIV-infected person
could be charged with a crime even if ejaculation did not take place during sex
provided a legal basis to dismiss the argument that using a condom meant there
was no crime.
