US: Ohio Supreme Court to review the state's HIV exposure law and the conviction of man charged under that law

The Ohio Supreme Court announced today, over three dissents, that it would review the state’s HIV criminal law and Orlando Batista’s conviction and sentence under that law.

The Ohio Supreme Court announced today, over three dissents, that it would review the HIV criminal law at issue in State of Ohio v. Orlando Batista. CHLP, along with fourteen Ohio-based and national HIV, civil liberties, LGBT, social advocacy and criminal justice organizations, signed on as friends of the court in support of appellant Orlando Batista’s request for leave to appeal his conviction, under Ohio’s HIV exposure law, to Ohio’s highest court.

Batista’s lawyers had argued at trial that the charges should be dismissed because the Ohio law is unconstituional. When the trial court rejected this argument, Batista did not contest that he had sex with his girlfriend without first disclosing his HIV status to her. The trial court found him guilty and sentenced him to 8 years imprisonment, the maximum allowed under the statute. Batista preserved his right to challenge the legality of the Ohio statutue itself on appeal, but the appellate court rejected these arguments and affirmed Batista’s conviction. The Hamilton County Public Defender, representing Batista, submitted a brief to the Ohio Supreme Court seeking review of the Ohio law.

Jeffrey Gamso, the former Legal Director of the ACLU of Ohio Foundation, with assistance from The Center for HIV Law and Policy and the ACLU of Ohio Foundation, submitted a brief supporting the petition for Ohio Supreme Court review. In our brief, we argued that Ohio’s felonious assault statute: (1) violates the Equal Protection Clauses of the Ohio and United States Constitutions because it singles out people living with HIV for prosecution in response to conduct that is not criminal in the case of other groups, for example those living with other sexually transmitted diseases; (2) compels speech in violation of the Free Speech Clauses of the First Amendment and the Ohio Constitution; and (3) violates the Americans with Disabilities Act for reasons similar to those in point one.

We expect to submit an amicus brief expanding on these arguments to the Ohio Supreme Court by the end of 2016.