Friday, December 6, 2013

Data Shows Ohio's Widespread Convictions of Criminal Transmission of HIV

Posted By on Fri, Dec 6, 2013 at 10:51 AM

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  • NNAAPC
James McGonegal was indicted earlier this year on a series of sexual offense counts, but one in particular garnered interest and prompted discussion throughout the community: the third-degree felony charge of failing to disclose he was HIV-positive to the parks ranger he was soliciting for sex.

Here's the relevant section of the Ohio Revised Code:

2907.25 Prostitution - after positive HIV test.

(A) No person shall engage in sexual activity for hire.

(B) No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall engage in sexual activity for hire.

(C)

(1) Whoever violates division (A) of this section is guilty of prostitution, a misdemeanor of the third degree.

(2) Whoever violates division (B) of this section is guilty of engaging in prostitution after a positive HIV test. If the offender commits the violation prior to July 1, 1996, engaging in prostitution after a positive HIV test is a felony of the second degree. If the offender commits the violation on or after July 1, 1996, engaging in prostitution after a positive HIV test is a felony of the third degree.

Effective Date: 05-30-1996

According to the Sero Project, an advocacy group that works to decriminalize these actions (by "fighting for freedom from stigma and injustice" and "ending inappropriate criminal prosecutions of people with HIV for non-disclosure of their HIV status..."), 16,565 people are living with HIV in Ohio. 69 of those people have been charged with these HIV-related crimes (for a total of 203 charges, 32 of which came down in Cuyahoga County).

And according to the Cleveland Department of Public Health, some 3,200 Cleveland residents are either HIV-positive or living with AIDS. Across Cuyahoga County, the number leaps to 4,708.

On Dec. 1, Propublica and BuzzFeed jointly published an investigative article on state laws surrounding criminal transmission of HIV here in the U.S. The piece was complemented by a wide-ranging data set that bores down on the cases in each state that has such laws on the books. Ohio is one of them. And these cases dot the state, from Cleveland to Cincinnati.

The investigation into states' laws reveals the stories behind a number of individual cases and the consequences that may spring from viral exposure legislation. For instance, as the authors note, "public health activities and law enforcement, which have traditionally been kept separate, can now overlap." That has resulted in some states (not Ohio, according to the report) seeing prosecutors using "subpoenas and warrants to force health officials to hand over these [disclosure] forms [known as Form 917s] along with other medical records, such as test results, as evidence against patients charged with violating viral exposure laws."

The article fleshes out a number of similar social and legal consequences of criminal transmission laws.

Here's an Ohio story that illustrates one of the many forms that prosecution of this law can take:

In one 2006 case, the defendant was already in prison when he was charged with an HIV-related offense.

Thomas Tompkins was serving his last month in prison at Ohio’s Richland Correctional Institution when a guard caught him performing oral sex on another inmate in the prison library. State police questioned the two inmates about whether the encounter was consensual, and both men agreed it was. But when Tompkins acknowledged that he had not disclosed his HIV-positive status to the other inmate, prosecutors accused him of felonious assault with HIV.

Scientists agree that a man who receives oral sex has virtually zero chance of contracting HIV.

Still, Tompkins pleaded guilty to a reduced charge of aggravated assault, adding an extra year to his sentence.

The data set gathered by the Propublica/BuzzFeed investigators is available for download.

(Regarding McGonegal's current open case with the county, his trial has been continued until Dec. 10.)

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