Scott Forsyth, The Daily Record Newswire
Remember Nushawn Williams? In the mid-1990s he contributed to a HIV crisis in Chautaugua County. Knowing he was infected with the virus, he had unprotected sex with multiple women. Many of the women later tested positive for HIV.
Williams pled guilty to charges of rape and reckless endangerment. He was imprisoned for 12 years. The state now wants to commit him indefinitely as a sex offender.
Last week Williams was in the news again. His attorney announced Williams was not HIV-positive, according to a recent test.
I mention Williams because he illustrates society’s desire to get tough on the transmission of HIV. Thirty-two states have laws that punish a person for simply exposing another to HIV. The virus does not have to be actually transmitted and there does not have to be a meaningful risk of transmission.
New York has such a law. It is the model of simplicity.
“Any person, who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another shall be guilty of a misdemeanor,” Public Health Law § 2307.
As of 2010, nobody had been prosecuted for violating the law, probably because in many of its applications the law is the model of unconstitutionality, treading on sexual privacy. This battle between public health and privacy is playing out right now in of all places Minnesota, the most recent state to permit same-sex marriages.
Daniel Rick is HIV-positive. He had unprotected sex on multiple occasions with a partner, who eventually tested positive. Rick had told his partner about his status.
When Rick and his partner broke up, the latter complained to the county. It charged Rick with attempted assault under a statute that criminalizes the “transfer” of “sperm” by a person “who knowingly harbors an infectious agent.” He was convicted. An intermediate appellate court overturned the conviction and the county appealed, State v. Rick, 821 N.W.2d 610 (Minn. App. 2012).
The Supreme Court has long recognized a “realm of personal liberty which the government may not enter,” Lawrence v. Texas, 539 U.S. 558, 577 (2003). Procreation and engaging in nonprocreative sexual activity with a person of the opposite sex and the same sex fall within this realm.
On a more general level, the Supreme Court has protected a person’s “choices to enter into and maintain certain intimate relationships,” relationships that “define one’s identity.” A law that burdens the ability to form these relationships must withstand heightened scrutiny or strict scrutiny, depending on the particular relationship at issue.
Minnesota’s law, like New York’s, penalizes a HIV-positive male for trying to beget a child or for just engaging in consensual sex with a woman or a man in the privacy of his home. The states do so in the name of preventing the spread HIV. But is the risk of transmission that great? No.
The probability of a HIV-positive man transmitting the virus to a woman during a single act of unprotected sex is estimated to be 1 in 1,250. This risk decreases to 1 in 31,250 if the HIV is detected early and the man undergoes treatment. Antiretroviral drugs reduce the presence of the virus in the body.
The states cannot justify the laws on the basis of the gravity of the consequences of contracting HIV. It is not a death sentence. For those with access to medical care, the disease becomes a chronic, manageable condition, like diabetes.
Neither law permits a middle ground. Intercourse, with or without disclosure, is illegal. The laws interfere severely with the exercise of a fundamental right.
Reducing the incidence of HIV is a legitimate state interest and may be even compelling, as strict scrutiny requires. However, Minnesota’s and New York’s laws are not narrowly drawn to achieve this interest.
How does the county attorney pressing the appeal respond? He demonizes Rick, calling him “the worst kind of sexual predator.” “If he wants to have sex, use a condom. That’s what people do all the time.”
To the county attorney, I guess the ends, here the removal of a Nushawn Williams-like character from society, justifies the means. We shall see what the Minnesota Supreme Court says on the subject.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
