[please note: this is a post in progress]

via crimlaw (link to atom feed; for some reason lammers has decided an animated header is the way to go. yuck.), Iowa Supreme Court upholds HIV-spreading conviction. (SCOIA slip ops here.)

i started this post several days ago, and have been trying to get my thoughts into order on the topic. i am bothered by two separate but related issues: the court’s treatment of the first amendment/compelled speech question, and the more fundamental question of criminalizing disease transmission.

I. iowa code §709C and the first amendment of the constitution of the united states

the relevant portion of the iowa code reads as follows:

709C.1 Criminal transmission of human immunodeficiency virus.

1. 1. A person commits criminal transmission of the human immunodeficiency virus if the person, knowing that the person’s human immunodeficiency virus status is positive, does any of the following:

1. a. Engages in intimate contact with another person.
2. b. Transfers, donates, or provides the person’s blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person.
3. c. Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.

1. a. “Human immunodeficiency virus” means the human immunodeficiency virus identified as the causative agent of acquired immune deficiency syndrome.
2. b. “Intimate contact” means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.
3. c. “Intravenous or intramuscular drug paraphernalia” means any equipment, product, or material of any kind which is peculiar to and marketed for use in injecting a substance into or withdrawing a bodily fluid from the human body.

the first amendment issue is presented thus:

The defendant claims section 709C.1 offends the First Amendment to the United States Constitution because it “compels speech.” Specifically, he argues an HIV-positive person engaging in intimate contact with another person can avoid criminal liability only by telling the potential victim that the person is HIV positive and educating the potential victim about the possible transmission of the virus. An infected person who has sexual relations with another without conveying this information is punished, he contends.

the court finds the statute to be a content-based restriction on speech:

…we conclude section 709C.1 regulates speech on the basis of content. The focus of section 709C.1 is not on the time, place, or manner of expression, but on the content of the communication. The statute requires transmission of specific information—the infected person’s HIV-positive status.

and therefore subjects the statute to strict scrutiny:

“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”

A. HIV/AIDS transmission: a compelling government interest?

the “compelling government interest” here, according to the court, is “the protection of public health by discouraging the transmission of the AIDS virus.” this leads me to my first question: exactly how compelling is the government’s interest in discouraging the transmission of HIV?

contrary to the court’s opinion,¹ HIV is not easily transmitted. according to the university of utah, [t]he rate of HIV transmission with sexual intercourse is much lower than with other sexually transmitted diseases — approximately 0.3% per sexual contact with an HIV-infected person. (in contrast, the mayo clinic reports that hepatitis B is nearly 100 times as infectious as HIV.)

it may be argued, as in footnote 1, that it is the combination of transmissibility and lack of a “cure” that raises the state’s interest in HIV protection to the “compelling” level, but there are other diseases, such as hepatitis b and c, which also have no “cure,” and in the case of hepatitis c, no vaccination.

given that iowa does not criminalize the transmission of other diseases, i strongly suspect that the only reason for iowa code §709C is the high “ick factor” of HIV/AIDS. and IMO, a high “ick factor” hardly raises something to the level of a compelling state interest.

¹ SCOIA quotes the louisiana court of appeals, “Considering the ease of transmitting AIDS and HIV through sexual penetration and the absence of any “cure,” the state’s interest in protecting the public health, safety, and general welfare of its citizenry becomes extremely significant.”