The Ohio state supreme court has handed down a ruling which will likely wind up at the Supreme Court one of these days. The court found that a law allowing jail time for an HIV positive person who has sexual intercourse with someone else without informing them of their status was constitutional. I had been vaguely aware that this was going on, but not of the extent. (It turns out that 34 states have some version of this law on the books and more than 300 people have been charged under them.)

This particular case in Ohio deals with a man who was sentenced to prison in 2015 after failing to inform his girlfriend that he was infected. (Time Magazine)

Attorneys for defendant Orlando Batista argued the law is unconstitutionally based on outmoded stigmas against the gay community and doesn’t take into consideration current survival rates for people with HIV. Ohio’s HIV assault law also violates free speech rights because it focuses only on disclosure, not the actual transmission of the disease, they said. Breaking the law is considered a felonious assault with a possible prison sentence of up to eight years. An appeal is likely to the U.S. Supreme Court, Hamilton County Public Defender Raymond Faller said Thursday. He called it a complicated case which will receive a lot of national attention.

Gut reactions aside, this seems to be a complicated question. My initial response was to think that obviously anyone who intentionally infects a hapless, ignorant partner with HIV should be punished. But there are a couple of good arguments being made by both sides here (along with some that seem rather preposterous).

In opposition to the law, there’s the argument that it’s compelling and controlling speech, making it a First Amendment debate. Further, the law isn’t regulating the actual “assault” (that being the transmission of the virus), but only the discussion of it. There’s also the argument that people sometimes engage in risky sex even if they know one of them has HIV and there’s no assurance that it will be transmitted, only that it might. And finally, the law is said to discourage people from getting tested, increasing the danger to the public.

In their defense of the law, siding with the state, the court maintains that the law actually does regulate conduct, not just speech. (That sounds like a bit of a stretch to me, but it is what it is.) They further found that the state has a valid interest in curbing the spread of HIV, particularly to individuals who had no idea that their partner was infected.

My first question is if we have any other laws on the books (which have survived a challenge) which demand notification of some potentially dangerous condition. In fact, it seems as if it’s problematic to restrict such legislation to a single disease. Doing some checking, it turns out that a few states, such as New York, do classify it as a battery if you transmit any STD (not just HIV) in this fashion. But not many of them treat the situation as seriously as Ohio does.

If you come down with the symptoms of the flu and hop on the bus or the subway, you have knowingly endangered everyone else. Can we really punish people for that? The case of STDs seems even more problematic because adults do bear some responsibility for their own actions. People can be assumed to at least be aware that STDs exist and can be dangerous, if not lethal.

I’ll confess I’m tossing this out here more for purposes of discussion than to offer an answer. This one is complicated and I’m really not comfortable with either answer for the reasons outlined above. I suppose we’ll wait and see what the Supremes have to say about it.