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Full Disclosure: Idaho's HIV Disclosure Laws Causing Their Own Issues

Idaho's HIV disclosure law fails to adapt with time

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In Court

Facing several felony counts--each of which carried a maximum of 15 years in prison--Thomas said he was advised by his court-appointed attorney, John Geddes, to accept a plea deal from the Prosecutor's Office and plead guilty to two of the seven counts, saving him from the possibility of serving nearly 105 years behind bars if he pled not guilty to all the charges and faced a jury trial.

"It's not like I did it [accepted the plea deal] to get off the hook of the other charges. I wanted to sit down and actually have a conversation about the actual statute, but it didn't turn out that way," Thomas said.

When he was sentenced on Sept. 16, 2009, before District Judge Michael E. Wetherell, Thomas' accuser spoke as a witness for the state. When describing her reaction when Thomas confirmed his HIV diagnosis, she stated, "I lit into him. I started screaming and yelling and crying and asked him why he would do something like that. I told him I was a mother. I wanted to be a grandmother. And I couldn't understand why he would risk my safety."

"This community must be protected," said Fisher. "Mr. Thomas doesn't understand that every time he has sex with another person who doesn't protect themselves or doesn't have the ability to protect themselves, that he's potentially giving them a death sentence."

In the end, Thomas was sentenced to 30 years in prison with 10 years fixed, five years indeterminate for each charge and that the sentences be served consecutively.

Thomas was also sentenced to three years for violating his parole by visiting his son in Oregon, to be served consecutively to the other sentences.

According to public defender Geddes' testimony at Thomas' sentencing hearing, other states which have nondisclosure laws list violations of those laws as misdemeanors, not felonies, unless an intent to infect another person with HIV is proven.

"A lot of people disagree with that statute. Judge, I'm not here to dehumanize or to support that statute one way or another. It's a statute. It's a law in the state of Idaho and we're bound by it. But there are a lot of people that feel it's not a very enlightened approach," Geddes stated. Prison time, let alone 15 years of incarceration, would then not usually be a possible sentence, but rather a year or less in county jail.

According to the Sero Project, a nonprofit human rights organization that promotes the decriminalization non-disclosure, Idaho is one of a handful of states with HIV-specific statutes that carry stiff punishments. North Dakota and South Dakota have similar laws but with a possible maximum of 20 years in prison. Other states, such as Washington, list attempted exposure of HIV as "assault," with a maximum penalty of 318 months--or just more than 26 years--per charge. In the United States, 36 states and territories have HIV-specific criminal laws.

Sero Project officials point to the case of Nick Rhoades, an HIV-positive Iowa man who used a condom, had an undetectable viral load and did not infect his partner, but was sentenced to 25 years in prison for not disclosing his HIV status.

After worldwide outcry against his excessive sentence, his sentence was reduced and Rhoades served one year. When he was released, he was required to register as a sex offender and had to undergo sex offender therapy comparable to that of convicted rapists and child molesters.

Others outside of Idaho have had their imposed sentences reduced in cases where no intent to infect was proven. But Fisher doesn't agree, stating she wished there were similar laws for not disclosing other sexually transmitted diseases, including herpes.

The disclosure statute was passed during the apex of the country's AIDS panic and uses language that today would make the average microbiology student cringe. The statute lists transmissible fluids of HIV as "semen, blood, saliva, vaginal secretion, breast milk, and urine."

Idaho State epidemiologist Dr. Christine Hahn stopped short of stating the possibility of HIV transmission through saliva was scientifically impossible, but in a written statement told BW that, "At the time that Idaho's law was passed in 1988, it was believed that saliva was a transmissible fluid for HIV. Since then, scientific studies have more clearly defined the body fluids that are the primary transmitters of HIV, but this doesn't prove that saliva cannot, on occasion, transmit HIV.

"Although HIV has been detected in both saliva and urine, it's only in very small quantities and has not been documented to transmit HIV."

Fisher, citing her own research for Thomas' 2008 case, agreed that, at the very least, the statute should be amended to reflect the omission of saliva as a transmissible bodily fluid.

"That's what we should be doing to amend the statute," Fisher said.

Thomas' case is just one of many where the issue of possible HIV transmission was deemed irrelevant, even by the Idaho Supreme Court.

In State of Idaho v. Mubita, an HIV-positive Moscow man was found to have been in violation of the disclosure statute even though in one of his charges, he was found to have performed oral sex on his accuser, an act highly unlikely to result in HIV transmission.

Mubita was also taking medications to lower his viral load at the time of the incident. The Idaho Supreme Court unanimously upheld his 11 felony convictions of violating the disclosure statute and his sentence.

The possibility of HIV infection in Idaho v. Mubita was not relevant to the Supreme Court justices because such language does not exist in the 1988 law.

"We need not go beyond the plain language of the statute," wrote Justice Jim Jones in his June 11, 2008, opinion.

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