Nick Rhoades is registered as a high-level felony sex offender in Iowa. As part of his probation, the 39-year-old has to wear an ankle monitor and cannot be alone with a minor, including his own nieces and nephews, according to Lambda Legal the non-profit law organization representing him.
Rhoades, who is HIV positive, was labeled a sex offender in 2009 when he was convicted of exposing a person to HIV after he had consensual sex and did not warn his partner about his HIV status. Rhoades used a condom and his partner did not contract the virus, according to the Associated Press and Lambda Legal.
Rhoades was convicted under a law in Iowa that criminalizes knowingly exposing a person to HIV or AIDS. Rhoades pled guilty, although later appealed the ruling, saying he had ineffective assistance from his legal counsel, according to court documents.
Initially, he was sentenced to 25 years behind bars, even though Rhoades used a condom and had an “undetectable” viral load. Rhoades was freed from prison after one year when a judge reviewed his case.
In an interview with an HIV advocacy group, the SERO Project, Rhoades said his time in prison made him feel guilty.
“You are a very, very, very bad person and you did a very, very, very bad thing. That gets programmed into you,” Rhoades said in the taped interview after his release from prison.
Rhoades has appealed his case to the Iowa Supreme Court to have his conviction thrown out and to be removed from the sex offender registry.
“We know so much more about HIV,” said Scott Schoettes, HIV project director and senior attorney at Lambda Legal, a nonprofit legal organization representing Rhoades. “We need to realize [that] just because you’re HIV positive and want to have an active sex life does not make you a criminal.”
As Rhoades awaits his final ruling in state court, the Iowa state legislature is considering changing the law under which Rhoades was prosecuted. In addition to Iowa, there are 30 states with HIV-specific criminalization laws, according to the Iowa Department of Public Health.
"You did a very, very, very bad thing. That gets programmed into you,”-Nick Rhoades
While the existing law only takes exposure into account, a bill the state senate passed unanimously last month would allow a prosecutor to charge a person under three different felony classes or a misdemeanor charge depending upon whether the person had intent to transmit the disease and whether the virus was actually transmitted.
A version of the bill is being debated in the Iowa state legislature after being amended by the state house judiciary committee. The committee removed the specifics about a misdemeanor charge, and added other infectious diseases to the list, including meningitis, hepatitis and tuberculosis. It was uncertain whether the bill would pass or whether the misdemeanor charge might be restored to the final bill.
State representative Chip Baltimore, chairman of the Iowa house judiciary committee, told ABC News the senate version did not give enough consideration to the victims, although there was a need to update the “outdated” law.
“Part of their misdemeanor charge, part of the entire sentencing structure is based on whether or not a transmission actually occurs. I don’t agree with that,” said Baltimore. “I don’t think when you’re trying to decide if someone should be convicted of a crime should depend upon if the victim contracted the actual disease.”
Baltimore said the committee was still working on the bill before it is sent to the floor and they were consulting health officials to properly phrase a section of the bill that would essentially give “safe harbor” to those who followed medical advice and were unlikely to transmit the disease even if they were HIV positive.
Advocates and public health officials hope an "updated" version of the law will allow more nuanced and not as severe prosecutions.
The current law allows felony prosecutions of HIV positive people who knowingly expose others to the disease without warning. This can include having sex, even safe sex, knowingly donating infected blood or sharing unclean drug paraphernalia, such as needles. The law allows a convicted person to be sentenced up to 25 years in prison.
Public health professionals interviewed said that in a case such as Rhoades’, an undetectable viral load and condom usage made the possibility of transmitting HIV during sex nearly impossible.
A letter sent by HIV expert Dr. Jeffery Meier, an associate professor of internal medicine at the University of Iowa, to state lawmakers said that even in someone with a detectable viral load, the “riskiest” form of sexual intercourse carried a less than “1.7 percent per-act risk of transmission.”
With modern HIV medication, Meier added, the low risk of transmission is either reduced by 96 percent or possibly even eliminated.
“Given the prognosis for people newly-diagnosed with HIV, it is inappropriate to maintain criminal laws embodying the mindset that people living with HIV are carrying a ‘deadly weapon,’” wrote Meier.
Advocates and public health officials have noted that the HIV-specific laws were passed in the early- to late-'90s before new research showed that modern medicine made HIV a manageable disease for most patients. Iowa's current law passed in 1999.
The Iowa Department of Public Health created an informational sheet for lawmakers that said an updated statute could help with public health efforts to identify and treat people with HIV.
“Criminal statutes may work against existing public health measures, such as HIV partner services and HIV case management, which require trust of public health officials to keep information about behaviors, partners and exposures confidential,” read the letter from the Iowa Department of Public Health.
Public health officials in Iowa have previously been called to testify in trials about a defendant's HIV status when they were being prosecuted under the current law.
"It is inappropriate to maintain criminal laws embodying the mindset that people living with HIV are carrying a ‘deadly weapon,’"- Dr. Jeffery Meier
Advocates said they’ve heard from people who do not want to get tested because they fear getting arrested.
Tami Haught, an advocate from the Community HIV and Hepatitis Advocates of the Iowa Network, said there is still stigma attached to the disease.
“’Take the test, risk arrest,’” said Haught of some attitudes toward testing in states with HIV-specific laws. “We now know the earlier someone is tested and gets treatment, the longer, more-productive life that person can live. ... If we could get rid of the stigma associated with HIV, we could get a lot further a lot of faster.”
According to Randy Mayer, the Bureau Chief for the HIV, STD and hepatitis at the Iowa Department of Public Health, people with HIV in Iowa are often diagnosed after they have started to exhibit symptoms, a sign that the disease has had time to progress. Mayer said approximately 40 percent of people in Iowa diagnosed with HIV develop AIDS within one year and that approximately 2,200 people in the state have been diagnosed HIV positive.
If the law is changed, advocates have said, it will help ease the stigma of HIV and encourage people to get treatment earlier, which can help to stop the spread of the virus.
“We have better science and much better treatment. We’re hoping with [this bill] that HIV is no longer this separate other than contagious disease that’s going to be treated [differently] than other major contagious diseases,” said Donna Red Wing, the executive director for the LGBT advocacy group One Iowa.