Oral Argument Preview: Is Section of Felonious Assault Statute Singling Out Sexual Conduct of HIV Positive Persons Unconstitutional? State of Ohio v. Orlando Batista.

On May 17, 2017, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Orlando Batista, 2016-0903. At issue in the case is whether R.C. 2903.11(B)(1) violates the Equal Protection Clauses and/or the right to free speech under the state and federal constitutions.  Since Justice Fischer was on the appellate panel in this case, he has recused himself, and Judge Thomas Wright of the Eleventh District Court of Appeals will be sitting in his stead.

Case Background

After submitting a no-contest plea, Orlando Batista was convicted of one count of felonious assault for engaging in sexual conduct while knowing he was HIV positive and failing to disclose his status to his sexual partner in violation of R.C. 2903.11(B)(1). Before entering his plea, Batista moved for a pre-trial dismissal, challenging the constitutionality of R.C. 2903.11(B)(1) on state and federal Equal Protection, freedom of speech, and void for vagueness grounds. At the motion to dismiss hearing, Dr. Judith Feinberg, an expert in infectious diseases and HIV care, testified on Batista’s behalf. Dr. Feinberg noted that while there was still no cure for HIV/AIDS, there has been great medical advancement, allowing for more effective treatment and a longer life-expectancy for infected individuals. In rejecting Batista’s constitutional challenges, the trial court denied the motion to dismiss and subsequently found Batista guilty.

On appeal, the First District unanimously affirmed the conviction, finding no equal protection or free speech violation. In an opinion authored by Judge Stautberg, joined by then-Judge Fischer and Judge Mock, the First District concluded that the applicable standard of review for the equal protection claim was rational basis. Accordingly, the First District found that R.C. 2903.11(B)(1) does not violate either state or federal equal protection rights, since Ohio has a legitimate interest in stopping the spread of HIV, and that the disclosure requirement of R.C. 2903.11(B)(1) is rationally related to this goal.

As to the free speech challenge, the First District first acknowledged that R.C. 2903.11(B)(1) is content-based and thus, demanded strict scrutiny review. However, the First District then concluded that discouraging the spread of HIV is also a compelling state interest and that requiring disclosure is a narrowly drawn means of achieving this interest. Finding R.C. 2903.11(B)(1) to be constitutional, the First District affirmed Batista’s conviction.

 Votes to Accept the Case

Yes: Justices French, Kennedy, O’Neill, and Lanzinger

No: Chief Justice O’Connor and Justices Pfeifer and O’Donnell

Key Precedent

Ohio Constitution, Article I, Section 2 (All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary.)

Ohio Constitution, Article I, Section 11 (Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.)

United States Constitution, First Amendment (Congress shall make no law […] abridging the freedom of speech.)

United States Constitution, Fourteenth Amendment (No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.)

R.C. 2903.11 (Felonious Assault)

(A) No person shall knowingly

(1) Cause serious physical harm to another

(B) No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly (1) Engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct.

(E) As used in this section

(4) “Sexual conduct” has the same meaning as in section 2907.01 of the Revised Code, except that, as used in this section, it does not include the insertion of an instrument, apparatus, or other object that is not a part of the body into the vaginal or anal opening of another, unless the offender knew at the time of the insertion that the instrument, apparatus, or other object carried the offender’s bodily fluid.

Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (when a governmental regulation infringes upon a fundamental right or a suspect class, the regulation is unconstitutional unless necessary to further a compelling governmental interest.)

State v. Noling, Slip Opinion No. 2016-Ohio-8252 (a statute violates the equal protection clause if the General Assembly’s action lacked all rational relation to the legitimate state interest.)

State v. Branch,  2006-Ohio-3793 (6th Dist.)(finding evidence sufficient for felonious assault conviction under 2903.11(A)(1) when HIV-positive individual spit in a victim’s eye.)

State v. Price,  2005-Ohio-4150 (5th Dist.) (finding evidence sufficient for felonious assault conviction under R.C. 2903.11(A)(2) when HIV-positive and Hepatitis-C positive individual spit on a victim.)

Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) (At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving expression, consideration or adherence…. Government action that requires the utterance of a message favored by the Government, contravenes this essential right.)

United States v. O’Brien, 391 U.S. 367 (1968) (When speech and nonspeech elements are part of the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms. A government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.)

Batista’s Argument

R.C. 2903.11(B)(1) unconstitutionally infringes on the rights of equal protection and free speech afforded under both the state and federal constitutions. In finding that R.C. 2903.11(B)(1) burdens an HIV-positive individual’s fundamental right against compelled speech by the government, the First District erred in failing to apply strict scrutiny review for equal protection analysis. However, even applying rational basis review, the Court should find that R.C. 2903.11(B)(1) violates equal protection rights for a number of reasons. First, R.C. 2903.11(B)(1) is not rationally related to Ohio’s purpose of preventing the spread of infectious diseases, such as HIV. Due to its initial prevalence in marginalized communities, such as gay men, HIV/AIDS has developed a stigma giving rise to discrimination and prejudice. HIV criminalization laws only serve to reinforce these stigmas and do not prevent the spread of HIV. Instead, these laws only discourage the education and prevention of the spread of HIV by reinforcing the outdated HIV/AIDS stigmas.

Second, R.C. 2903.11(B)(1) violates equal protection rights because it fails to provide a rational basis for distinguishing among the methods of transmitting HIV. While HIV can be transmitted through sexual conduct, blood, and shared needles, R.C. 2903.11(B)(1) only targets transmission through sexual conduct. Thus, it is underinclusive. Given that the risk of harm is present in each method of transmission, the fact that transmission through sexual conduct is the only method targeted highlights the lack of a rational relationship between this law and the State’s interest in preventing spread of the disease.

Finally, R.C. 2903.11(B)(1) violates equal protection rights because there is no constitutionally justifiable basis for treating HIV-positive individuals differently from carriers of other sexually-transmitted diseases, such as Hepatitis C. Like HIV, Hepatitis C can be transmitted through sexual conduct or blood and has no vaccine. Although a cure for Hepatitis C has been recently developed, it is expensive and, more importantly, was unknown at the time R.C. 2903.11 was passed. Again, this underscores the unfair and irrational distinction the legislature made when it singled out HIV in its criminalization laws. HIV and Hepatitis pose very similar risks of harm and mortality. However, R.C. 2903.11(B)(1) targets only HIV and fails to consider an intent to infect, use of protection,  or even whether transmission occurs. As such, it is an arbitrary and irrational means of pursuing the State’s interest in preventing the spread of infectious diseases.

R.C. 2903.11(B)(1) also infringes on the right to freedom of speech by compelling an HIV-positive individual to disclose his status to his partner before engaging in sexual conduct. While the First District correctly found that this form of compelled speech requires strict scrutiny review, it erred in its application of this standard to R.C. 2903.11(B)(1). The compelled speech required by R.C. 2903.11(B)(1) fails to meet strict scrutiny because it is not narrowly tailored to further a compelling government interest. Again, HIV criminalization laws discourage testing, education, and dissemination of accurate information on the spread of HIV.  The statute is also overbroad because it defines “Sexual Conduct” so broadly that it compels speech even in situations where the sexual conduct or bodily fluids exchanged pose no or little risk of transmission. Finally, the State could still prosecute HIV carriers for exposing people to HIV through the other sections of R.C. 2903.11(A), rendering R.C. 2903.11(B)(1) wholly unnecessary. Accordingly, R.C. 2903.11(B)(1) is not the least restrictive means necessary to achieve the State’s interest and unconstitutionally abridges the right to free speech.

State’s Argument

The First District correctly found that R.C. 2903.11(B)(1) does not violate equal protection or free speech rights. First, R.C. 2903.11(B)(1) was properly analyzed by the First District under a rational basis review in the equal protection challenge.  However, even assuming it affects a fundamental right or involves a suspect class, R.C. 2903.11(B)(1) satisfies strict scrutiny under equal protection analysis. The challenged legislation serves the compelling government interests in protecting society against the spread of disease and in ensuring actual consent to sexual conduct. Despite Batista’s contentions, the Legislature had ample reason for singling out HIV for its dire consequences and lack of a cure.

Additionally, the means by which the Legislature has chosen to serve these interests is narrowly tailored. R.C. 2903.11(B)(1) imposes minimal restraints on HIV carriers: to inform their sexual partners of their diagnosis before engaging in sexual conduct. The statute does not require abstinence, mandate the use of protection, or limit sexual conduct to certain types. There is no restriction on any other aspect of a carrier’s life or sexual relations. Certainly, there are other ways to combat the spread of HIV; this however, does not detract from the effective means by which R.C. 2903.11(B)(1) contributes to this goal. The statute aims to foster personal responsibility, and ensure that consent is truly informed.

Finally, R.C. 2903.11(B)(1) does not abridge the freedom of speech. R.C. 2903.11(B)(1) is unique in the compelled speech context because it involves both compelled speech (HIV diagnosis disclosure) and non-speech conduct (engaging in sexual conduct). As such, the proper standard of review should be the less exacting standard of intermediate scrutiny. Under First Amendment intermediate scrutiny analysis, R.C. 2903.11(B)(1) is constitutional because it furthers the important and substantial governmental interest in preventing the spread of HIV. Further, this government interest is completely unrelated to the suppression of free expression because it is only the conduct that is proscribed by the government, not the speech. Moreover, the requirement that the HIV carrier disclose this diagnosis to his sexual partner is merely an incidental restriction on speech. R.C. 2903.11(B)(1) only “compels” speech in limited circumstances and does so while serving an important interest in favor of public safety and personal responsibility.

Finally, even if strict scrutiny applies to compelled speech, the statute withstands that scrutiny because the state has a compelling interest in ensuring informed consent and limiting the exposure of HIV, and the simple requirement that a person so infected inform a partner of that status before engaging in sexual conduct is narrowly tailored to meet that state interest.

For these reasons, the Court should affirm the First District’s rejection of Batista’s constitutional claims.

Batista’s First Proposed Proposition of Law

R.C. 2903.11(B) violates the Equal Protection Clauses of the Ohio and United States Constitutions because: (1) There is no rational basis for a distinction between HIV-positive individuals and individuals with other infectious diseases such as Hepatitis C; (2) There is no rational basis for a distinction between the methods of transmission of HIV; (3) The statute is not rationally related to the government’s purpose.

Batista’s Second Proposed Proposition of Law

R.C. 2903.11(B) is a content-based regulation on speech that unconstitutionally compels speech and usurps the constitutional right to refrain from speaking in violation of the First and Fourteenth Amendments to the United States Constitution under a strict-scrutiny standard.

State’s First Proposed Counter Proposition of Law

Ohio’s felonious assault provision requiring a known carrier of a virus that causes AIDS to disclose such status to any person prior to sexual conduct with that person. R.C. 2903.11(B) does not violate the Equal Protection Clauses of the Ohio or the United States Constitutions because it is narrowly tailored to Ohio’s compelling interest in preventing the exposure to and the spread of an incurable and communicable disease.

State’s Second Proposed Counter Proposition of Law

If speech is indeed involved in Ohio’s felonious assault provision requiring a known carrier of a virus that causes AIDS to disclose such status to any person prior to sexual conduct with that person (R.C. 2903.11(B)(1)), it does not violate the freedom of speech protections of the Ohio or the United States Constitutions because it is narrowly tailored to Ohio’s compelling interest in preventing the exposure to and the spread of an incurable communicable disease.

 Amici in Support of Batista

The American Civil Liberties Union of Ohio Foundation, Inc. (ACLU) and the Center for Constitutional Rights (CCR) filed a joint brief in support of Batista. Both are civil rights organizations that are dedicated to ensuring that constitutional freedoms are secured and protected for all. In their brief, Amici focus solely on the effect of R.C. 2903.11(B)(1) on the freedom of speech. Like Batista, Amici argues that the First District correctly found strict scrutiny to be the appropriate standard of review, but that it erred in its application of the standard. According to Amici, R.C. 2903.11(B)(1) fails strict scrutiny review because the state has failed in its burden to prove that the criminalization of this non-disclosure provides the least restrictive means of preventing HIV transmission.

The Amici agree that preventing the spread of HIV is a compelling state interest, but argue that the state has pointed to no evidence that the law materially advances that interest. Amici cites to empirical research suggesting that HIV criminalization laws do not lead to safer sex practices or lower transmission rates, but rather, may have the opposite effect. Amici urges the Court to recognize the alternative methods the State could pursue to serve its goal of limiting HIV transmission without compelling speech, such as further educational efforts on testing, prevention, counseling, protection, treatment, and personal responsibility.  Finally, Amici argue the law is both underinclusive, for failing to regulate large classes of behavior that have a high likelihood of HIV transmission, and overbroad, for regulating conduct that has almost no chance of transmitting the virus.

Amici puts forth the following proposed proposition of law:

ACLU and CCR Proposed Proposition of Law: R.C. 2903.11(B)(1) compels speech in violation of the Free Speech clauses of the U.S. and Ohio Constitutions.

Another joint amicus brief was filed in support of Batista by 9 organizations: The Center for HIV Law and Policy, The American Academy of HIV Medicine, GLBTQ Legal Advocates & Defenders, GLMA: Health Professionals Advancing LGBT Equality, Human Rights Campaign, The National Association of Criminal Defense Lawyers, The National Center for Lesbian Rights, the Office of the Ohio Public Defender, and the Treatment Action Group. While each of these organizations has a unique interest and mission, the common belief among these amici is that HIV criminalization laws are unconstitutional and discriminatory against individual liberties and human dignity.

In their brief, Amici focus on the role of HIV criminalization laws in increasing the perpetration of misinformation and stigma surrounding HIV/AIDS.  Amici challenges the State’s contention that R.C. 2903.11(B)(1) is intended to limit HIV transmission by pointing to the law’s lack of incentives to diminish risk of transmission. Amici also argue that R.C. 2903.11(B)(1) violates constitutional equal protection rights by placing a unique burden on HIV carriers without rational justification. Similar to Batista’s position, Amici point to the discriminatory animus of the statute in targeting marginalized communities. Finally, the Amici argue that the statute violates prohibitions against disability-based discrimination. Amici also set forth their own proposed propositions of law:

Amici Proposed Proposition of Law 1 : The Act Violates the Constitutional Guarantee of Equal Protection.

Amici Proposed Proposition of Law 2: The Act Violates Prohibitions Against Discrimination on the Basis of Disability.

Amicus in Support of the State

Amicus, Ohio Attorney General (OAG), filed a brief in support of the State. OAG objects to both of Batista’s constitutional challenges, asserting R.C. 2903.11(B)(1) to be constitutional both facially and as-applied to Batista. According to OAG, no fundamental right or suspect class is implicated in this case, indicating that the First District was correct to review the equal protection claim under a rational basis review. Moreover, the First District was correct to conclude that the disclosure requirement is rationally related to the legitimate government interest of fostering informed consent and promoting public health. Finally, R.C. 2903.11(B)(1) does not run afoul of First Amendment guarantees because it regulates conduct, not speech. Any impact on speech is incidental. However, even if the Court concludes this was a content-based regulation of speech, it is narrowly tailored to serve a compelling governmental interest, and thus, constitutional. Finally, the OAG argues that the policy arguments made by Batista are a matter for the General Assembly.

Finally, the OAG argues that the statutory disability violation claim raised by one of Batista’s amici was never argued below, and is thus waived.

OAG submits the following proposed propositions of law:

OAG’s First Proposed Proposition of Law

The requirement that individuals who know that they have tested positive for HIV disclose that status to a partner before engaging in sexual conduct with that partner does not violate equal protection.

OAG’s Second Proposed Proposition of Law

The requirement that individuals who know that they have tested positive for HIV refrain from sexual conduct unless they disclose their status does not violate the First Amendment.

Student Contributor: Danielle List

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