On March 10, 2009, an Idaho grand jury charged Kerry Stephen Thomas with seven felony counts of violating Idaho Code Section 39-608 by "transferring or attempting to transfer any of his bodily fluid, to-wit: semen and/or saliva by genital to genital and/or oral to genital contact, without disclosing his infection of the human immunodeficiency virus (HIV)."
"Not to punish you severely would depreciate the seriousness of this crime and this continuing conduct," District Judge Michael E. Wetherell said during Thomas' sentencing, according to court transcripts. "The individual with which you had the sexual relationship did not know of your HIV status."
Thomas, a longtime Idaho resident and former Boise State University basketball player, was subsequently served the indictment on March 19, 2009, since he was in Ada County Jail, following an arrest for violating parole by visiting his son in Oregon without permission. Thomas had been a parolee since 2003 for violating the very same HIV disclosure statute in a 1996 incident for which he was found guilty by a jury and served seven years in prison.
In both cases, Thomas did not infect his accusers with HIV nor was this fact ever considered relevant in either case. In both cases, Thomas was found to have violated the statute by not disclosing his HIV status to his accusers prior to engaging in sexual intercourse with them.
"I was very frustrated, angry, embarrassed, scared--not only for myself but my family," Thomas said to BW.
While meant as a safeguard for communities "to protect the public health," Idaho's HIV disclosure law has led to lengthy prison sentences for its violators, confusion for those living with the virus and criticism for its antiquated language by legal and scientific communities.
Prior to Thomas' parole violation, he had been working as an agent manager for a Boise-based real estate brokerage company for several years. He was charged with engaging in at least seven sexual acts with a co-worker he had known for several years but not disclosing his HIV status to her until he was confronted by her and several of her friends about it.
Approved by the Idaho Legislature on March 24, 1988, and later signed into law by then-Gov. Cecil Andrus, the HIV disclosure law outlines definitions, punishment and defenses, stating, "Any person who exposes another in any matter with the intent to infect or, knowing that he or she is or has been afflicted with acquired immunodeficiency syndrome (AIDS) ... or other manifestations of human immunodeficiency virus (HIV) infection, transfers or attempts to transfer any of his or her body fluid ... to another person is guilty of a felony and shall be punished by imprisonment in the state prison for a period not to exceed 15 years."
The term "transfer" is defined as any kind of sexual act, whether it be "genital-genital," "oral-genital" or "anal-genital" contact, regardless of whether HIV was transferred, protection was used or there were other factors which would greatly diminish the possibility of infection.
"I am HIV positive"
The focus of the 1988 statute is that "full disclosure" must occur prior to sexual contact.
"You have to disclose," said Jean Fisher, deputy prosecuting attorney for Ada County--who represented the state in both of Thomas' cases--regarding persons who are HIV positive and wish to engage in sexual acts with noninfected individuals. But the statute does not stipulate what exactly constitutes disclosure. Fisher agrees that unlike other sexual crimes where the burden of proof is on the accuser, the responsibility under the Idaho HIV disclosure law is on the infected individual.
"Yes, clearly, the statute puts the onus to make full disclosure on the defendant," Fisher said.
The statute does not elucidate what it defines as "full disclosure," and the language of the law has remained unamended by the Legislature since 1988.
For an HIV-positive individual, verbally disclosing his or her status in the form of "I am HIV positive" creates a legal gray area.
"Like most sex cases, a lot of it is on a 'he said, she said' basis," Fisher explained.
Thus, short of providing a notarized affidavit signed by both the HIV-positive individual and his or her sexual partner, the possibility of being prosecuted under the disclosure statute remains, though Fisher stated the Ada County Prosecutor's Office takes all evidence into account before considering filing criminal charges.
As for Thomas, who tested positive for HIV in 1988, "disclosing is very difficult," he said, adding that while being HIV positive is in itself a big deal, particularly for sexual partners, "It's not something I wake up in the morning and first think about."
His thoughts in the mornings prior to his arrest in 2009 were more toward the health and well-being of his son and work issues.
"When you're dealing with a chronic illness, it's not always your first thought, your primary concern," Thomas said.
According to the Centers for Disease Control and Prevention's website on HIV/AIDS, after a person tests positive for antibodies to HIV, tests measuring how much virus is in a sample of blood--the viral load--and the condition of a patient's immune system--a T-cell count--are typically ordered by health care providers.
There is no scientific consensus on when a person with HIV should begin treatment, commonly referred to as Highly Active Antiretroviral Therapy. It is not uncommon, given the power of these medications, for a person on HAART to develop a registered viral load of "undetectable." That means the amount of virus is so low, it cannot be measured by a machine.
According to a study done by the Federal Commission for HIV/AIDS in Switzerland and cited in a story published in the Pacific Northwest Inlander, it is functionally impossible for someone with such a low viral load to transmit HIV to a sexual partner, especially when other precautions such as condom use are used.
However, whether a person has an undetectable viral load, an above-average T-cell count, if he or she used a condom or even if he or she intended to infect another person, according to state law, these factors are irrelevant.
According to a sworn affidavit signed July 19, 2012, and filed in the 4th Judicial District Court in Thomas' case, Dr. James C. Roscoe--an HIV specialist and staff physician with Boise-based Wellness Center--confirmed that Thomas was taking HAART in November and December 2008, when he was accused of engaging in sexual relations without disclosing his HIV status.
"As a result of initiating HAART," Roscoe stated, "Mr. Thomas' HIV RNA viral load was noted to be undetectable on Nov. 20, 2008. Additional HIV RNA viral load testing on Dec. 11, 2008, and May 11, 2009, also were undetectable."
"There are a lot of variables, from what I understand, in the way my case was prosecuted, which aren't important," Thomas said. "It's irrelevant."