A crime not to tell: HIV laws debated in wake of high-profile arrest

It usually doesn’t make the news when men solicit other men for sex at Edgewater Park on Cleveland’s lakeshore. Law enforcement does its best to clear up the problem, but the attempts to find a quick hook up there still happen.

An arrest on Oct. 11, 2013, was different, though, garnering attention because it involved a priest and felony, not just misdemeanor, charges.

Rev. James McGonegal, then pastor of St. Ignatius Catholic Church on the city’s West Side, was cruising Edgewater in his late model Jeep and offered $50 to an undercover park ranger in exchange for sex. While being processed at the city jail, the 68-year-old priest revealed he was HIV- positive.

That revelation upped the ante for McGonegal, raising the charge of soliciting to soliciting for sex while positive for HIV, a third-degree felony.  A conviction could result in one to five years in prison.

The McGonegal case made the news, but it’s only one of hundreds that have involved HIV-related charges in Ohio in just the last eight years.

The national investigative news organization ProPublica, and The Sero Project,  an HIV-related advocacy group, collected data for 19 of the 35 states, including Ohio, that have laws making it a crime for failing to disclose one’s HIV status prior to having sex. HIV is the human immunodeficiency virus that leads to AIDS.

The controversial laws have come under fire nationally, with lawmakers and HIV and gay right activists questioning whether they truly are a deterrent to the spread of the disease or discriminate against those who have the virus. In Ohio, a discussion about changing the laws is just beginning.

HIV disclosure laws result in hundreds of Ohio convictions

Eye on Ohio analyzed the data gathered by ProPublica and that found that in Ohio, there have been more than 300 cases in which people have pleaded guilty to or been convicted of HIV-related charges since 2005. Montgomery County (Dayton) tallied the most cases with 91, followed by Hamilton County (Cincinnati) with 84 and Summit County (Akron) with 35.

Data for Cuyahoga County was limited to the years between 2009 and 2012, when 27 HIV cases wound their way through the courts and resulted in guilty pleas or convictions.

HIV-disclosure laws began appearing in the late 1980s, near the height of the HIV/AIDS crisis; early worries about epidemic nature of the disease and the potential threats to the blood and organ donor networks prompted some state legislatures to take action.

The Ohio state legislature between 1996 and 2004 amended the assault, soliciting, loitering to solicit, and prostitution laws to include the HIV stipulation.

Now, in romantic or sexual situations that don’t involve solicitation, the charge is felonious assault if an individual fails to disclose he or she has HIV prior to having sex. Anyone soliciting for sex will have added felony charges for failure to reveal an HIV-positive status.

The charges apply whether or not any sexual act takes place, whether or not transmission of the disease occurs, or whether or not the defendant was taking medication to suppress the virus.

Shakyra Diaz, policy director of the Ohio chapter of the American Civil Liberties Union, believes the laws are discriminatory.

“Criminalizing HIV does not protect anyone,” she said. “Being HIV positive doesn’t equal an intent to harm someone. Singling out HIV status, or any other health condition, is unwarranted.”  Diaz noted that Ohio law is mute when it comes to other sexually transmitted diseases.

A counselor with a local AIDS advocacy organization in Cleveland, who works with HIV-positive people who are arrested, echoed Diaz’s concerns.

“It is the only disease that is labeled to be a weapon,” said the counselor, who asked not to be identified. “It is a crime to be engaged in behavior with someone because you have it in your system. Right from the get go, automatically, you are a second class citizen in the eyes of the law.”

Proponents of the laws say they’re necessary to protect the public health.

Jim Buchy

Jim Buchy

“It’s an issue of public safety,” said State Rep. Jim Buchy, a Republican from Mercer County, “I want the public protected at all times from people who want to hide the fact they are HIV infected.”

“We want to slow down and stop the spread of this disease,” he said.

Proponents cites multiple arrests as argument for HIV laws

Proponents of the HIV disclosure laws cite cases in which defendants who were soliciting have been arrested multiple times – presumably increasing the risk of exposing others to HIV – as reasons why the laws are important.

The Dayton Daily News in a 1993 series on prostitutes with HIV cited the case of Vicki West, a prostitute who was arrested more than four dozen times in the Dayton area. The series made the rounds at the Ohio General Assembly; lawmakers cited the articles so often  when debating the amendments to solicitation and prostitution laws that one of the bills became known as the “Vicki West law.”

West was convicted under the soliciting and loitering to solicit laws in 2008 and served four years in the Ohio Reformatory for Women in Marysville. Not long after her release, on Dec. 13, 2013, the 54-year-old West was arrested again for soliciting an undercover police officer.

Most of the HIV-related cases resulting in convictions in Cuyahoga County have come from guilty pleas and many involved women who had a history of both drug abuse and soliciting and in some cases multiple arrests.

Yvonne Spain, for example, a 47-year-old Cleveland woman has, according to Cuyahoga County Clerk of Courts records, nine drug arrests dating to 1998. She was rearrested twice in 2012 for soliciting while being HIV positive. Spain pleaded guilty and was sentenced  to 18 months in prison and three years of community control (formerly called probation) after her prison term is completed.

Spain’s attorney, Jeff Hastings, said there have never been any allegations that she transmitted the disease and that he advocated for community control so that Spain could try to get healthy.

As of 2010, approximately 16,000 people in Ohio were living with HIV/AIDS, according to the Ohio Department Health [Report].  Franklin and Cuyahoga counties had the highest number of HIV cases.

Is a change warranted?

In some parts of the United States, there are movements underway to modify or repeal the HIV laws; national organizations and even the Obama administration are calling for change.

The ProPublica story reported noted that Obama administration officials have come out against HIV-specific criminal laws. In 2010, the story said, the White House’s Office of National AIDS Policy issued a white paper saying that the “continued existence and enforcement of these types of laws run counter to scientific evidence about routes of HIV transmission and may undermine the public health goals of promoting HIV screening and treatment.”

Diaz, of the Ohio ACLU, also wondered if criminalizing the non-disclosure of HIV might run counter to the goal of protecting public health.

“If people are afraid to disclose their HIV status to begin with, they may not seek care,” says Diaz, “they may not disclose it.  It’s counter to good health policy.”

“We know more about HIV than when these laws were first adopted,” she said. “We need to look at the individual and his or her intent. Did they have an intent to harm? The state should have to prove intent.”

Efforts to convince Ohio lawmakers to make the HIV-stipulation laws less punitive are in their infancy. Rashida Richardson, a staff attorney with the Center for HIV Law and Policy in New York City said a November meeting attracted 79 social workers, lawyers, and others from Ohio who were interested in changing the state’s laws.

“A lot of people have misconceptions about the illness, how it is transmitted, and where treatment is now,” she said. “HIV is very hard to transmit in comparison to other sexually transmitted diseases. Those with HIV are more likely to practice safe sex.”

Richardson said those who favor changing the laws need to build awareness of the issue and more support for their position before any legislation can be proposed.

Buchy said he’s heard of no talk in the state capitol about modernizing the HIV exposure laws.

“It’s not an issue I’m interested in championing, or anything of its kind,” he said.

McGonegal, meanwhile, is awaiting his arraignment, charged with soliciting while HIV-positive, abusing harmful intoxicants and public indecency. The latter two charges are misdemeanors. His case has not been assigned a judge yet.  His attorney, Henry Hilow, did not return several calls seeking comment.

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