What’s On Their Minds: Is Section of Felonious Assault Statute Compelling Disclosure of HIV Status Unconstitutional? State of Ohio v. Orlando Batista.

Update: On October 26, 2017, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

“But presumably there is a partner here who was uninformed and deprived of the right to make that decision. Is that not sufficient consideration for the state under the rational basis test to impose this type of a statute?”

Chief Justice O’Connor, to defense counsel.

On May 17, 2017, the Supreme Court of Ohio heard 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 sat 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.

Statute at Issue in this Case

R.C. 2903.11 (Felonious Assault)

(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.

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.)

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.)

Wooley v. Maynard 430 U.S. 705, (1977) (In order for the government to compel speech it must have a compelling interest and be implemented using the least restrictive means. If either of these requirements are not met the Government may not compel its citizens to perform said speech—even if the speech itself is non-vocal in nature.)

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) (under the First Amendment, general prohibitions on “fighting words” are permitted, but prohibitions on specific types of speech based on content or viewpoint is not permitted by the First Amendment.)

At Oral Argument

Arguing Counsel

Joshua A. Thompson, Assistant Public Defender, Office of the Hamilton County Public Defender, for Appellant Orlando Batista

Avram D. Frey, Gibbons P.C., Newark, New Jersey, for Amici in support of Appellant Orlando Batista

Samuel C. Peterson, Deputy Solicitor, for Amicus Ohio Attorney General Mike DeWine, in Support of Appellee State of Ohio

Paula E. Adams, Assistant Prosecuting Attorney, Hamilton County, for Appellee State of Ohio

Allocation of Argument Time

Batista’s counsel shared oral argument with counsel for his amici. Mr. Thompson focused on the First Amendment arguments; Mr. Frey the Equal Protection arguments. The state divided its argument between the Deputy Solicitor, who did the lion’s share, and the Assistant Hamilton County Prosecutor.

Batista’s Argument

Subsection B(1) of Ohio’s felonious assault statute is an unconstitutional content-based regulation on free speech that improperly compels HIV positive individuals only to disclose their most private medical information to potential sexual partners. Since this is a content based regulation, it is presumptively unconstitutional unless the state proves that it is the least restrictive means to achieve its compelling state interest, which it cannot do. It is not, as the state argues, merely incidental speech. It requires speech no matter what, even if no conduct occurs. And because speech is implicated here, strict scrutiny is required. There are less restrictive ways to meet the state’s interest. Purposeful or reckless disclosure could be required, which would not implicate speech at all.

Further, the statute is underinclusive because it does not include other dangerous sexually transmitted diseases. It is also overbroad because it includes a number of kinds of sexual conduct that carry no or very little risk of transmission of HIV. It also burdens victims, who are now required to disclose their HIV positive status for the rest of their life to potential sexual partners.

A statute that included all such dangerous contagious diseases would trigger content-neutral analysis. This statute singles out HIV based on content, and it is not the least restrictive means to achieve its interest.  This statute is facially unconstitutional because it only focuses on HIV.

Amici’s Argument

This statute singles out people living with HIV and AIDS for draconian punishment that is not provided to individuals who are otherwise guilty of the same effective conduct but with different contagious and sometimes incurable diseases. There’s no rational basis for that distinction. This court should find that the true purpose underlying the statute is unconstitutional animus.

While the purpose served by the statute, stopping the spread of HIV and AIDS, is both legitimate and compelling, there are a number of reasons why this statute is not serving that purpose. The same conduct, with respect to any other contagious and potentially deadly disease, including diseases without cures, is not reached by this statute. Furthermore, the conduct at issue here could have been reached by laws of general applicability already in existence in Ohio.

While amici allege that because First Amendment concerns are implicated, strict scrutiny review is appropriate, nevertheless, even under rational basis review this statute must fail.

State’s Argument

Attorney General’s Argument

The challenged statute serves two important and related purposes—first, that informed consent exists between sexual partners, and second by doing so, it is designed to promote behaviors that help to reduce the spread of HIV. There is simply no evidence to support the claim of the defendant and his amici that the statute has a chilling effect on getting tested.

The standard of review in this case is rational basis, for both claims. The First Amendment claim does not raise First Amendment concerns because it regulates conduct, not speech. Just because there is some incidental speech does not change that fact. There is no requirement to engage in any speech unless a person also engages in sexual conduct. The statute simply prohibits engaging in certain conduct without a disclosure.  And unlike the statutes in some other states, Ohio’s places the burden on the prosecutor by making disclosure an element of the offense.

There is a rational basis for distinguishing HIV from other infectious diseases. There is no cure for HIV. Hepatitis C, for example, is spread primarily through blood contact, not by sexual conduct in the way that HIV is—so the primary transmission vector of the 2 is different. So there is at least a rational basis for the General Assembly to believe that it is important to disclose HIV to sexual partners.

While the Attorney General disagrees that it is even necessary to look at the legislative history, the General Assembly was very clearly concerned with informing sexual partners. The statute reflects the recognition that when there is sexual conduct, there are two parties to that conduct, and the other person has a right to know and to be a party to the decision to engage in that sexual conduct, even if the risk of transmitting HIV in any individual conduct is minimal. It is still at least rational for the General Assembly believe that both parties should make that decision.

Even if the court views this as a speech case, the interest of ensuring informed consent is a compelling one and the statute is narrowly tailored to require disclosure to the only other person who needs to know. There is no way to write a more narrowly tailored statute to ensure that informed consent exists. But the Attorney General’s position is that this statute regulates conduct.

This must be an as-applied challenge to the statute, and it must fail. The defense never asserted an overbreadth claim. To do so, the defense would have to show that a substantial amount of protected speech would fall within the statute, but that is not the case.  This statute regulates conduct, does not implicate the First Amendment, and survives rational basis review on the equal protection claim.

Prosecutor’s Argument

Regardless of the rationale that is applied to the statue, it survives under any test this court deems appropriate. While the other states with similar statutes have taken different approaches, it is significant that in enacting this law, the legislature put the burden on the state to prove that informed consent was not obtained. That is a significant indication that this statute should survive any type of test that this court would apply.

What Was On Their Minds

Type of Challenge

Is this a facial or an as-applied challenge, asked Justice French?

Standard of Review

What is the standard of review for the equal protection claim, asked Justice French? What is the rational basis for distinguishing HIV from other diseases? Was there any cure for HIV when the statute was drawn?

Are we here on strict scrutiny for the freedom of speech case, asked Justice O’Neill? Isn’t free speech a fundamental right? Or the right not to speak? If the court were to find this is a free speech case, would the statute survive strict scrutiny?

Equal Protection

Could the state require disclosure for sexually transmitted diseases other than HIV such as syphilis or gonorrhea, asked Justice O’Donnell? Justice DeWine asked whether those, too, would be content-based.

If the statute can be applied to anyone, is it not facially unconstitutional, asked Justice DeWine? Unconstitutional in all its applications?

Compelled Speech

Isn’t any impact on speech merely incidental, asked Justice French? On this record, isn’t there evidence that these two partners talked about whether he had a disease, so is there really any compelled speech? He would only have been compelled to say yes, instead of no, I am not infected?

Doesn’t the government require speech in the form of disclosures all the time so that people can be informed, asked Justice DeWine? And often not in the least restrictive way?

What if an infected person were required to go to a website and be listed as an HIV positive individual so that he doesn’t have to speak to his partner about it, placing the burden on the partner to check the website to see if this person is HIV positive, asked Chief Justice O’Connor? Would that be ok? Does compelling disclosure have a chilling effect on people getting tested?

Is it the state’s position that this is not a freedom of speech statute, asked Justice O’Neill? (answer: yes. It regulates conduct. Any speech is incidental.)

Informed Consent

In all kinds of contexts, we require disclosure, so people can make informed decisions, commented Justice DeWine. Why is this any different? And what about the interest of the sexual partner here?

Wasn’t this purposeful exposure if he lied when they were discussing it, asked Chief Justice O’Connor?


What is the conduct that is being regulated here, asked Chief Justice O’Connor? Isn’t what is being regulated the announcement, or the sharing of that information? A person can engage in sexual conduct after disclosing that he or she is HIV positive?

State’s Interest

Isn’t the government’s interest here not just exposure, but the fact that someone can make an informed consent, asked Justice DeWine in a key question of the day. Doesn’t the state always have an interest in the fact that people consent?  Would it have slowed down the epidemic in this case if Batista had told his partner?

What could the state have mandated instead of this, asked Chief Justice O’Connor? Isn’t the other person’s right a compelling interest? She commented that if somebody wants to get up on a soapbox, and spout whatever they want to spout, that would be an entirely different story, because there’s not an intended or direct victim, whereas here there is the other person’s rights to consider. Are they subjugated to Batista’s free speech? The other person will have to take invasive, costly, and life-long measures, not to mention their own burden of having to disclose. How can that be squared with the defendant’s free speech?

If the state says we have an epidemic, and we have a way to slow it down, how can we not call that a rational basis, asked Justice O’Neill? Doesn’t telling a sexual partner that you are infected slow it down?

Narrow Tailoring

What is the least restrictive way to address this issue, asked Justice O’Donnell?

What would be a less restrictive means, asked Justice O’Neill?

Since there are many other infectious diseases out there that can be transmitted, and the statute doesn’t include them, isn’t it underinclusive, asked French? Wouldn’t requiring purposeful exposure be more restrictive? If there would be a prohibition on purposeful sexual conduct, is that not more restrictive than saying you have to disclose, but once you do you can engage in whatever conduct you want? Isn’t there already intent in this situation, since the victim asked Batista directly if he was infected, and he said no?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the state, but with the right to informed consent being the more compelling state interest here. While Batista’s counsel wisely conceded that Batista’s conduct was reprehensible, the fact that his partner directly asked him if he were infected and he flat out lied to her was very troubling to everyone.

While controlling the spread of an infectious and contagious disease is certainly also a legitimate government interest, the defense argument about underinclusiveness seems a fair one. The state could not answer Justice French’s question whether there was any “cure” for HIV when the statute was enacted, and there are other dangerous infectious diseases that are not included in the statute. It is also true that Batista could have been charged under 2903.11(A)(1)-the already-existing felonious assault statute.

The First Amendment/compelled speech argument seemed ineffective. While Justice O’Neill seemed the most sympathetic to it, my sense was that a majority sees the statute as regulating conduct, with any impact on speech being only incidental.

Regardless, I think a majority, including Justice O’Neill, is going to find that under either rational basis or strict scrutiny review, the government’s interest in ensuring informed consent between sexual partners trumps all else, and that the statute is narrowly tailored to meet that interest. Justice DeWine was clearly with the state on informed consent, noting that “our system is full of times when government compels speech so other people can make informed decisions.” Both Chief Justice O’Connor and Justice French were also very concerned with the effects on the uninformed partner. Subbing Judge Wright asked no questions.

To Student Contributor Paul Taske

I want to welcome rising 2L Paul Taske, who is one of my new student contributors to the blog. You can read more about him here.

Here are Paul’s Impressions

Ultimately, I think this case will be decided in favor of the state. The justices appeared to be all over the place in terms of the questions they asked counsel and the approaches they seemed more willing to explore. So, even though this appears to be a win for the state, I would not be surprised if the opinion of the court is fractured in terms of its reasoning. A plurality opinion seems likely to me—probably authored by Justice O’Donnell or the Chief herself. While many of the justices may concur in the judgment they will likely write separately to fully articulate their own views about the interplay between the free speech claim and equal protection claim.

The Deputy Solicitor appeared to handle questions much more easily than the defense counsel. Justice O’Neill may have tipped his hat, and by extension the hat of the court itself, when he addressed the Deputy Solicitor and said he agreed with the policy behind the statute. This confirmed what I suspected throughout the arguments that the court does not view this law apart from the compelling policy interests the state sought to address through this legislation. This conclusion was bolstered at the end of the argument when Chief Justice O’Connor asked the defense counsel about the rights of the victim and how we should balance her right to be fully informed, in addition to all of the burdens she is now faced with for life, with the interests of Mr. Batista and others infected with HIV.

I will say, however, that if the court does decide in favor of the defense it will be on equal protection grounds. No justice, save Justice French, seemed willing to buy into the arguments posited by defense counsel. It was the counsel for the amici in support of Batista who seemed to sway the justices when speaking about the disparate impact on persons infected with HIV as opposed to HPV and other non-curable and life-threatening sexually transmitted diseases. But ultimately the equal protection concerns will likely be outweighed by the concerns for public policy, especially when much of the case was argued on rational basis grounds and there is so much deference given to the legislature.


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