Ohio Supreme Court Upholds HIV-Disclosure Law

COLUMBUS, Ohio (CN) – An Ohio law that requires HIV-positive individuals to notify sexual partners of their status does not violate the First Amendment, the state’s highest court ruled Thursday.

The Ohio Supreme Court unanimously upheld a lower court ruling that found the statute served a legitimate governmental interest and regulated conduct, not speech.

Ohio Revised Code 2903.11(B)(1) prohibits people “with knowledge of their HIV status from ‘engag[ing] in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in sexual conduct.’”

The law was challenged by Orlando Batista, who was convicted of felonious assault and sentenced to 8 years in prison after his girlfriend discovered he had neglected to tell her he was HIV-positive.

Batista argued that the law violates the First Amendment because “it does not prevent the spread of HIV, it compels speech even when the sexual conduct or bodily fluids cannot transmit HIV, and its existence is not necessary to prosecute HIV positive individuals for exposing people to HIV,” according to court records.

He also claimed the disclosure rule violates HIV carriers’ equal-protection rights “because there is no rational basis for a distinction between HIV positive individuals and those individuals with other infectious diseases such as Hepatitis C … [which also] can be transmitted sexually and by sharing needles.”

Ohio Supreme Court Justice Terrence O’Donnell, who authored Thursday’s opinion, disagreed and wrote that “the disclosure is incidental to the statute’s regulation of the targeted conduct. Thus, this statute regulates conduct, not speech, and therefore does not violate the First Amendment right to free speech.”

Justice O’Donnell cited the 1994 Illinois Supreme Court case People v. Russell, in which that court ruled that a law criminalizing the transmission of the HIV virus “through intimate conduct … did not have ‘the slightest connection with free speech.’”

O’Donnell also rejected Batista’s equal protection claim, which he called “misplaced.”

“We are not faced with a statute that requires individuals to disclose their Hepatitis C diagnosis or other contagious infection,” he wrote. “We leave that policy decision to the General Assembly.”

O’Donnell continued, “And the existence of other sexually transmitted diseases that may have serious public health and safety consequences does not eliminate the rational relationship between the classification here – individuals with knowledge of their HIV-positive status who fail to disclose that status to sexual partners – and the goal of curbing HIV transmission.”

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