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Man makes safe-sex argument to overturn conviction on HIV exposure

A man who was convicted of knowingly having sex with another man while infected with HIV is asking the Iowa Supreme Court to overturn that decision, saying that because he used a condom there was no basis for the charge, his lawyers said in an appeal on Thursday.

Nick Rhoades was sentenced to 25 years in prison on one count of criminal transmission of HIV and lifetime registration as a sex offender. Rhoades pleaded guilty to the charge on advice from his previous lawyer, who recommended he do so even though there was no basis for the charge because he used a condom, Lambda Legal, his new attorneys, said in the court filing and a statement.

"The law only applies to those who intend to expose others to HIV," Christopher Clark, senior staff attorney for Lambda Legal, said in the statement. "This conviction cannot stand, because someone who engages in safe sex is not guilty of criminal transmission of HIV. Nick's use of a condom clearly indicates that he was protecting his sexual partner from exposure."

Lambda Legal said it was not clear that Rhoades understood the 1998 state statute.

After one year in prison, Rhoades' sentence was reviewed. He received a suspended sentence of up to 25 years and five years’ probation.

His conviction stemmed from a sexual encounter he had on June 26, 2008, with Adam Plendl. They had sex and used a condom. Several days later, Plendl learned from a friend that Rhoades could be HIV-positive and contacted police. Rhoades was arrested in September 2008; Plendl hasn’t contracted HIV and it was “undisputed” that they used a condom, Lambda Legal said in a statement.

But the men dispute whether they talked about Rhoades’ HIV status before having sex. Plendl testified that Rhoades told him he was “clean,” but Rhoades said it was not discussed, according to the filing.

"To think that for the rest of my life I'll be branded as a felon and sex offender, all because of a one-time safe sex encounter where no HIV was transmitted, is unimaginable," Rhoades said in the statement.

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Rhoades application to overturn his conviction was denied in December. He appealed that decision to the Supreme Court.

Efforts to reach Plendl by telephone were not successful. But he told the Waterloo-Cedar Falls Courier in February that he went through months of testing before learning that he didn’t have HIV.

"Someone has to be accountable for their actions, and that is something that is a life-altering virus, and it has an impact on the physical health and the mental health," he said, calling his mental anguish “indescribable."

Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 80 prosecutions in the past two years in the U.S., Lambda Legal said, adding: “HIV criminalization perpetuates the many myths and misconceptions that fuel other types of discrimination against people living with HIV.” 

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