State v. Batista

• Decision Date: 26 October 2017
• Docket Number: No. 2016–0903,2016–0903
• Citation: 2017 Ohio 8304,151 Ohio St.3d 584,91 N.E.3d 724
• Parties: The STATE of Ohio, Appellee, v. BATISTA, Appellant.
• Court: Ohio Supreme Court

151 Ohio St.3d 584

91 N.E.3d 724

2017 Ohio 8304

The STATE of Ohio, Appellee,

v.BATISTA, Appellant.

No. 2016–0903

Supreme Court of Ohio.

Submitted May 17, 2017

Decided October 26, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for appellee.

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos and Joshua A. Thompson, Assistant Public Defenders, for appellant.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Samuel C. Peterson, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General Michael DeWine.

Elizabeth Bonham and Joseph Mead; and Jeffrey Gamso, Cleveland, urging reversal for amici curiae American Civil Liberties Union of Ohio Foundation, Inc., and Center for Constitutional Rights.

Valerie Kunze, Assistant Public Defender; Gibbons, P.C., Lawrence Lustberg, and Avram Frey; and Catherine Hanssens and Mayo Schreiber Jr., urging reversal for amici curiae Center for HIV Law and Policy, American Academy of HIV Medicine, GLBTQ Legal Advocates & Defenders, GLMA: Health Professionals Advancing LGBT Equality, Human Rights Campaign, National Association of Criminal Defense Lawyers, National Center for Lesbian Rights, Office of the Ohio Public Defender, and Treatment Action Group.

O'Donnell, J.{¶ 1} Orlando Batista appeals from a judgment of the First District Court of Appeals that affirmed his felonious assault conviction for knowingly engaging in sexual conduct with his girlfriend, R.S., without disclosing to her that he had tested positive as a carrier of the human immunodeficiency virus ("HIV").

{¶ 2} Batista maintains that R.C. 2903.11(B)(1), which prohibits those persons with knowledge of their HIV status from "engag[ing] in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct," is a content based regulation that compels speech in violation of the First Amendment to the United States Constitution. He also contends that this statute violates the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution because there is no rational basis for a distinction between HIV positive individuals and individuals with other infectious diseases such as Hepatitis C

or between the methods of transmitting HIV.

{¶ 3} Because R.C. 2903.11(B)(1) regulates conduct, not speech, it does not violate the First Amendment to the United States Constitution, and it is rationally related to the state's legitimate interest in preventing the transmission of HIV to sexual partners who may not be aware of the risk and therefore does not violate the Equal Protection Clauses of either the United States or Ohio Constitutions. Accordingly, we affirm the judgment of the court of appeals.

Facts and Procedural History

{¶ 4} In October 2001, while Orlando Batista was incarcerated on an unrelated charge, the Department of Rehabilitation and Correction tested him for HIV and informed him that he tested positive for the disease.

{¶ 5} After his release on that charge, in November 2013, Batista began an intimate relationship with R.S. and knowingly engaged in intercourse with her without disclosing his HIV positive status to her prior to engaging in that conduct.

{¶ 6} Two months later, she learned of his HIV positive status from his ex-sister-in-law. When she confronted him, he acknowledged he had tested positive, and he told her he had been infected when he was a teenager. During a subsequent interview with the police, he admitted to having had intercourse with her without telling her he was HIV positive.

{¶ 7} A grand jury indicted him for felonious assault in violation of R.C. 2903.11(B)(1), which makes it a crime for a person who has tested positive for HIV to knowingly engage in sexual conduct with another without disclosing that information prior to engaging in the sexual conduct. Batista moved to dismiss the indictment, arguing that the statute violates the First Amendment right to free speech and the Equal Protection Clauses of the United States and Ohio Constitutions.

{¶ 8} The trial court conducted a hearing on the motion, and Batista presented the testimony of Dr. Judith Feinberg, a faculty member at the University of Cincinnati College of Medicine with a specialty in infectious diseases and a subspecialty in HIV disease. Feinberg testified that the lifetime survival rate of those diagnosed with HIV who receive treatment is now comparable to the survival rate of people who do not have HIV. She also acknowledged, however, that while there are ways to treat HIV, there is no cure. She compared HIV to Hepatitis C

, noting that there are medicines that can cure Hepatitis C, and acknowledged that although there is increasing recognition that Hepatitis C can spread through sexual transmission, the most common way to spread it is through needles because the amount of Hepatitis C in blood is high compared to amounts in other bodily fluids. At the conclusion of the hearing, the court denied Batista's motion.

{¶ 9} Batista subsequently pleaded no contest to felonious assault, and the trial court found him guilty and sentenced him to eight years in prison.

{¶ 10} The First District Court of Appeals affirmed that conviction and concluded that the statute does not violate the First Amendment. The court reasoned that the statute is a content based law subject to strict scrutiny, that the state has a compelling interest in stopping the transmission of HIV through sexual conduct, and that the statute is narrowly tailored to serve that interest because it requires disclosure only to potential sexual partners. 2016-Ohio-2848, 64 N.E.3d 498, ¶ 9–12. It also held that R.C. 2903.11(B)(1) does not violate the Equal Protection Clauses of the United States and Ohio Constitutions because the state has a legitimate interest in stopping the spread of HIV and because there is a rational relationship between the state's interest and requiring disclosure of a positive HIV status before engaging in sexual conduct. Id. at ¶ 6.

{¶ 11} We accepted Batista's discretionary appeal.

{¶ 12} On appeal to this court, he argues that R.C. 2903.11(B) is subject to strict scrutiny review for the First Amendment and Equal Protection claims because the statute compels content based speech and implicates a fundamental right. He acknowledges that the state has a compelling interest in reducing or stopping the spread of HIV and other infectious diseases, but he argues that the statute fails under strict scrutiny review because it is not narrowly tailored to further a compelling government interest: it does not prevent the spread of HIV, it compels speech even when the sexual conduct or bodily fluids cannot transmit HIV, and its existence is not necessary to prosecute HIV positive individuals for exposing people to HIV.

{¶ 13} Batista further maintains that even if the statute does not compel content based speech, it violates equal protection because there is no rational basis for a distinction between HIV positive individuals and those individuals with other infectious diseases such as Hepatitis C

. He contends that both HIV and Hepatitis C can be transmitted sexually and by sharing needles, that there is no vaccine for either disease, and that both diseases can shorten the lifespan of the infected person. Batista maintains that by singling out HIV but no other infectious disease, the statute is motivated by an outdated stigma that surrounds the virus. He also argues that the statute discourages people from getting tested for HIV and that it does not prevent the spread of HIV. Lastly, he asserts that there is no rational basis for a distinction between the methods of transmission of HIV.

{¶ 14} The state argues that the statute prohibits only uninformed sexual conduct and any effect this prohibition has on speech is incidental. Alternatively, it argues that even if R.C. 2903.11(B)(1) compels speech, the statute withstands strict scrutiny review on the First Amendment and Equal Protection claims. The state claims that it has a compelling interest in ensuring informed consent and in limiting the spread of HIV by means of sexual conduct and that the statute is narrowly tailored to that interest because it neither prohibits an infected person from having sexual relations with another nor compels public disclosure of a person's HIV positive status.

Issues

{¶ 15} We are called upon to consider whether this statute violates the First Amendment right of free speech or the Equal Protection Clauses of the United States and Ohio Constitutions.

Law and Analysis

{¶ 16} R.C. 2903.11(B)(1) states: "No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome

, shall knowingly * * * [e]ngage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct."

First Amendment

{¶ 17} The First Amendment does not prevent statutes regulating conduct from imposing incidental burdens on speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 62, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006), quoting Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949) (" ‘it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed’ "); Sorrell v. IMS Health, Inc. , 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) ("the First Amendment does not prevent restrictions directed at * * * conduct from imposing incidental burdens on speech").

{¶ 18} This case presents an issue of first impression in this state. However, two state supreme courts have held that statutes similar to R.C. 2903.11(B)(1) did not regulate...