Reform of Iowa’s HIV Transmission Law Meets Resistance

Lynda Waddington

The case of an Iowa man sentenced to the maximum allowed by state law for failing to disclose to a one-time intimate partner that he was HIV-positive has been cited as evidence of the need to reevaluate state criminal transmission laws.

An Iowa man, whose only previous encounter with the law was a 2006
operating-while-intoxicated conviction, was sentenced to the maximum
allowed by state law for failing to disclose to a one-time intimate
partner that he was HIV-positive. The case, which has not resulted in
the one-time partner actually contracting HIV, has been used as
evidence by some who say it’s time that state criminal transmission
laws should be re-evaluated.

Iowa, however, isn’t a state with a high percentage of people living
with HIV, the virus that causes AIDS. Prosecutions related to this
particular law are often highly publicized as much for their uniqueness
as for a public’s need to know. In addition, of the statute’s 24
convictions since its inception, three have been appealed and
subsequently affirmed by the Iowa Supreme Court.

Ed Fallon, a member of the Iowa legislature during the 1998 session when the HIV transmission
law was nearly unanimously passed, said he voted in favor despite
having some reservations at the time. Because more than a decade has
passed, he can’t remember specific items of contention that may have
been brought up during legislative debate, but he has a general sense
of the federal government requiring such a law if the state wanted to
access monies for HIV- and AIDS-related care and education.

Fallon also isn’t sure if often spirited debate surrounding the ban
on same-sex marriage, passed earlier that same session, influenced
debate of the criminal transmission law.

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Opening a door to unintended consequences

Bob Rigg, an academic member of a legislative study committee
charged with reorganizing the criminal code, believes members of the
group are likely be willing to address issues surrounding this statute
and others during the course of their research. That being said, he
also wants advocates to understand that “once the flood gate is opened,
it can’t be closed.”

“There is often this notion of ‘Boy, we are going to change it and
we are going to make it all better,’ but sometimes when you open that
door [you don’t get the results you intended],” said Rigg, who worked
as a public defender in Polk County until 1995 when he became director
of a criminal defense program he developed at Drake University.

“Keep in mind that when you are talking about a legislature, a lot
of them are from rural areas. They are conservative. They have notions
about how things work and how they don’t work. Their understanding may
be absolutely perfect, but their clarity on some other things might not
be. And, you are asking these members to weigh in on a criminal act
that you’re going to turn into a crime and punish someone for doing. To
me, that is a very dangerous thing to do unless you know exactly where
you are going with it and exactly what’s going to happen with it. …
There’s no way to stop it, and there is no way to stop the amendments
that would come from either one political party or the other.”

Rigg’s personal preference, because the political process can be so
unpredictable, is to be extremely thoughtful when considering criminal
code changes.

“When people start playing around with the criminal code or they
start saying that we should amend our Constitution, I’m like, ‘No, we
shouldn’t.’ I err on the side of caution,” he said. “If you think what
you’ve got is bad, be careful. You just might end up with something
even worse.”

Although he is familiar with and has written about Iowa’s criminal
transmission of HIV law, he says he still doesn’t know enough about it
to determine if it is effective policy.

“The worst policy in the world is made on an anecdotal basis,” he
said. “That is, when you don’t like the result of one case out of
1,000, and you attempt to change policy to fix that one result. What
happens is that you end up making the other 999 worse. That’s the worst
way to make policy, and the worst way to get legislation through.”

A thorough evaluation of the transmission law, according to Rigg, would be an analysis of each case that has been prosecuted.

“You have to look at the Department of Corrections because although
people have been sentence, you want to know exactly how much time
they’ve served,” he said. “Just because a defendant is sentenced to 25
[years], doesn’t mean he or she is going to serve 25. Some of these
individuals could be paroled in as little as two.”

While state intervention to reduce prison sentences may not be an
intended consequence of the initial legislation, Rigg argues that it
can have “a moderating effect” on an otherwise extreme sentence.

“It is the judge’s job to sentence them. It is the DOC’s job to evaluate them for release,” he said.

Because he hasn’t done an extensive study on the practical impacts
of this particular statute, which is not currently on the committee’s
radar, Rigg indicated he didn’t feel comfortable voicing an opinion as
to its effectiveness.

“Is this statute something that should be discussed? Yes,” he said.
“I think all laws should be evaluated periodically to see if they are
accomplishing the intended goals of the legislature. Matter-of-fact,
now that you called me I might bring this statute up within the
subcommittee and ask what is going on with it.”

Yet even if Rigg and the rest of the committee decide to research
this or other criminal statutes, such review is not likely to be quick.
The last major revision of the criminal code took place in 1978, a
process that began, according to Rigg, during the 1960s.

EARLIER: HIV-positive man’s prison sentence shines light on Iowa law; Iowa courts stand firm on HIV transmission law

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