On October 26, 2017, the Supreme Court of Ohio handed down a merit decision in State v. Batista, Slip Opinion No. 2017-Ohio-8304. The court unanimously upheld the constitutionality of R.C. 2903.11(B)(1), which requires persons who know they are HIV positive to disclose that information to a sexual partner before engaging in sexual conduct, but split 4-3 on the reasoning in reaching that conclusion. Justice O’Donnell wrote the majority opinion, joined by Chief Justice O’Connor, Justice O’Neill, and Judge Thomas Wright, of the Eleventh District, who sat for the recused Justice Fischer. Justice DeWine wrote a separate concurrence, joined by Justices French and Kennedy. The case was argued May 17, 2017.
Orlando Batista learned in October of 2001, while incarcerated on an unrelated matter, that he was HIV positive. In November of 2013, Batista began a sexual relationship with R.S. without disclosing his HIV status before doing so. Two months later, R.S. learned of Batista’s HIV-positive status from his ex-sister-in-law and confronted him about this. He acknowledged this, telling her he had been infected as a teenager. He later admitted all of this to the police.
Batista was indicted for felonious assault in violation of R.C. 2903.11(B)(1). He moved to dismiss the indictment on the grounds that the statute violated the First Amendment right of free speech, and the Equal Protection Clauses of the U.S. and Ohio Constitutions.
After a hearing in which Batista presented expert testimony about the advances in HIV treatment, and other infectious diseases not treated similarly under the statute, the trial court denied Batista’s motion to dismiss. Batista then pled no contest to felonious assault, and was sentenced to eight years in prison.
On appeal, the First District unanimously affirmed the conviction, finding no equal protection or free speech violation.
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.
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 non-speech elements are part of the same course of conduct, a sufficiently important governmental interest in regulating the non-speech 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.)
People v. Russell, 630 N.E.2d 794 (Ill.1994) (Illinois’ law, similar to R.C. 2903.11, regulates conduct not speech. It cannot be reasonably asserted that the statute seeking to deter certain conduct unconstitutionally infringes upon the right of freedom of speech. The statute does not have even the slightest connection with free speech.)
Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47 (2006) (First Amendment speech rights are not implicated by the Solomon Amendment’s requirement to allow military recruiters access to campus in order to receive federal funds. Because there was no requirement for the law school to take a pledge or adopt a motto when hosting the recruiters or dictate the speech of the law school, its speech cannot be considered compelled except, and to the extent that, the school provided accommodation for other recruiters.)
State v. Williams, 2010-Ohio-2453 (All statutes enjoy a strong presumption of constitutionality. Rational basis is the proper standard of review unless the complainant can demonstrate that a higher standard is necessary. Pursuant to this standard of review, a statute that does not implicate a fundamental right or a suspect classification does not violate equal-protection principles if it is rationally related to a legitimate government interest.)
State v. S.F., 483 S.W.3d 385 (Mo.2016) (Missouri’s law, similar to R.C. 2903.11, regulates conduct not speech. The statute seeks to prevent certain conduct that could spread HIV to unknowing or nonconsenting individuals. While individuals may have to disclose their HIV status if they choose to engage in activities covered by the statute, any speech compelled by the statute is incidental to its regulation of the targeted conduct and does not constitute a freedom of speech violation.)
As is his wont, Justice O’Donnell begins his opinion with the positions of the parties.
The constitutional challenges to R.C. 2903.11(B) should be subject to strict scrutiny because the statute compels content-based speech and implicates a fundamental right. While the state does have a compelling interest in stopping the spread of HIV and other infectious diseases, the statute is not narrowly tailored to meet that interest because it does not prevent the spread of HIV, it compels speech even when HIV cannot be transmitted, and is not necessary to prosecute HIV positive individuals for exposing others to HIV.
Even if the statute does not compel content-based speech, it violates equal protection because there is no rational basis for making a distinction between HIV positive individuals and people with other infectious diseases that can be sexually transmitted, like Hepatitis C. Because of its disclosure requirements, the statute discourages people from being tested for HIV, and does not prevent the spread of HIV. Finally, there is no rational basis for a distinction between methods of transmission of HIV.
The statute only prohibits uninformed sexual conduct. Any effect on speech is purely incidental. If the statute does compel speech, it passes strict scrutiny review because the state has a compelling interest in ensuring informed consent and limiting the spread of HIV by sexual conduct and is narrowly tailored to that interest because it neither prohibits an infected person from having sex with another person nor compels any public disclosure of the person’s HIV status.
The First Amendment does not prevent statutes that regulate conduct from imposing incidental burdens on speech. The court concludes that the statute here at issue regulates conduct, not speech, and any required disclosure is simply incidental to the targeted conduct.
Justice O’Donnell often asks at oral argument about what sister states have decided, especially involving cases of first impression, which this is. Two states—Missouri and Illinois—have statutes similar to Ohio’s, and both found that their statues did not regulate speech and therefor did not violate the First Amendment. O’Donnell concludes that similarly, Ohio’s statute regulates conduct, not speech, and does not violate the First Amendment right to free speech.
The challenged classification is individuals who know they are HIV positive who fail to disclose their status to another person before engaging in sexual conduct with that person. The state interest is curbing the spread of HIV to sexual partners who may not be aware of the risk. Here, because the statute implicates no fundamental right or suspect classification, rational basis analysis is appropriate.
The court rejects Batista’s argument that the statute is not rationally related to the state’s clearly valid interest. The majority notes that asking the court to evaluate the wisdom of the legislative policy choice here is beyond its authority. The existence of other sexually transmitted diseases that may have serious public health consequences doesn’t change the rational relationship between the statute and the state interest of curbing HIV transmission, nor does the fact that there may be other methods of HIV transmission.
Justice DeWine’s Separate Concurrence
DeWine’s chief disagreement is with the majority’s view that the statute at issue here regulates conduct, but not speech. To him, the statute regulates both. “When the government tells someone what he must say, it is regulating speech,” he wrote.
DeWine applies strict scrutiny to the First Amendment challenge, meaning that a content-based regulation of speech will be upheld only if it is narrowly tailored to meet a compelling state interest and is the least restrictive means of doing so.
The state’s interests are these: limiting the spread of the HIV virus and ensuring informed consent to sexual relations. DeWine first concludes that these interrelated interests are compelling state interests. While Batista argues that the health risks from HIV infection are not nearly as horrific as they once were, DeWine finds that it is the sexual partner, rather than the infected person, who should get to evaluate that risk, and decide whether to engage in sexual relations. He further finds the means chosen to further those interest are narrowly tailored and the least restrictive way to do so:
“Under the statute, a person must disclose his HIV status only if he wishes to have sex and then only to the person with whom he wishes to have sex. The only speech that is compelled is speech that is directly necessary for informed consent. I cannot fathom—and Batista has not advanced—any less restrictive or more narrowly tailored means that could have been employed by the government to achieve its interests here,” wrote DeWine.
Justice DeWine would also apply a higher level of scrutiny than the majority did to Batista’s equal-protection challenge because of his conclusion that the classification affects a fundamental right. But because he agrees that the statute is narrowly tailored to meet a compelling state interest, he arrives at the same conclusion as the majority: no equal protection violation here, either.
Justices French and Kennedy joined the separate concurrence.
Because R.C. 2903.11(B)(1) regulates conduct, not speech, it does not violate the First Amendment to the United States Constitution, and it is rationally related to the state’s legitimate interest in preventing the transmission of the human immunodeficiency virus to sexual partners who may not be aware of the risk and therefore does not violate the Equal Protection Clauses of either the United States or Ohio Constitutions.
The outcome of this one was never really in doubt. After argument I wrote that a majority saw the statute as regulating conduct, with any impact on speech being only incidental, which turned out to be the majority position.
I also thought a majority would find that under either rational basis or strict scrutiny review, the government’s interest in ensuring informed consent between sexual partners to be a compelling one, and that the statute is narrowly tailored to meet that interest. That was the emphasis of the separate concurrence.