THE STATE OF OHIO, APPELLEE, v. BATISTA, APPELLANT.
No. 2016-0903
Supreme Court of Ohio
October 26, 2017
Slip Opinion No. 2017-Ohio-8304
Submitted May 17, 2017. APPEAL from the Court of Appeals for Hamilton County, No. C-1500341, 2016-Ohio-2848.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Criminal law—
SYLLABUS OF THE COURT
Because
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
{¶ 3} Because
{¶ 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
{¶ 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
{¶ 11} We accepted Batista‘s discretionary appeal.
{¶ 12} On appeal to this court, he argues that
{¶ 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
{¶ 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}
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
{¶ 19} In State v. S.F., 483 S.W.3d 385 (Mo.2016), where a Missouri statute made it “unlawful for any individual knowingly infected with HIV to * * * [a]ct in a reckless manner by exposing another person to HIV without the knowledge and consent of that person to be exposed * * * [t]hrough contact with blood, semen or vaginal secretions in the course of oral, anal or vaginal sexual intercourse,”
{¶ 20} And in People v. Russell, 158 Ill.2d 23, 630 N.E.2d 794 (1994), where Caretha Russell, who knew she was infected with HIV, engaged in sexual intercourse with Daren Smith without telling Smith of her infection and the state subsequently charged her with violating a statute that made it a crime for a knowing carrier of the HIV virus to transmit the virus to another person through intimate conduct, the Supreme Court of Illinois held that the statute did not have “the slightest connection with free speech.” Id. at 26. See former
{¶ 21} Like the statutes at issue in S.F. and Russell,
Equal Protection
{¶ 22} In State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 39, this court held that “a statute that does not implicate a fundamental right or a suspect classification does not violate equal-protection principles if it is rationally related to a legitimate government interest.” Under rational basis analysis, a classification ” ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999), quoting Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). “[A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications at 315.
{¶ 23} The federal Equal Protection Clause does not forbid classification, but it requires that different treatment be related to the purpose of the law. See State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 24 (plurality
{¶ 24} Batista asks the court to weigh the wisdom of the legislature‘s policy choices, but that is beyond our authority. Because there is some conceivable basis to support the legislative arrangement, the statute does not violate equal protection. Batista‘s argument that no rational basis exists to require only HIV-positive individuals to disclose their status while not requiring the same of individuals with Hepatitis C, for example, is misplaced. We are not faced with a statute that requires individuals to disclose their Hepatitis C diagnosis or other contagious infection. We leave that policy decision to the General Assembly. And the existence of other sexually transmitted diseases that may have serious public health and safety consequences does not eliminate the rational relationship between the classification here—individuals with knowledge of their HIV-positive status who fail to disclose that status to sexual partners—and the goal of curbing HIV transmission.
{¶ 25} There is also a rational basis for the statute‘s focus on a specific type of HIV transmission; specifically, sexual conduct rather than transmission by other methods, such as blood or needles. Sexual conduct remains one of the methods by which HIV is transmitted. Simply because there are other methods of HIV transmission does not render the classification here without a rational basis.
{¶ 26} We recognize that there have been advancements in the treatment of individuals with HIV that may have reduced the transmission and mortality rates associated with the disease. However, we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational. See Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19-20.
{¶ 27} Thus, Batista‘s position that
Conclusion
{¶ 28}
Judgment affirmed.
O‘CONNOR, C.J., and O‘NEILL and WRIGHT, JJ., concur.
DEWINE, J., concurs, with an opinion joined by KENNEDY and FRENCH, JJ.
THOMAS R. WRIGHT, J., of the Eleventh Appellate District, sitting for FISCHER, J.
DEWINE, J., concurring.
{¶ 29} I agree with the majority that
{¶ 30} In the majority‘s view, the First Amendment is not implicated because the “statute regulates conduct, not speech.” Majority opinion at syllabus. I disagree. The statute plainly regulates both conduct and speech: one who tests positive for the human immunodeficiency virus (“HIV“) must tell his partner that he is HIV positive before engaging in sex. When the government tells someone what he must say, it is regulating speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006); Riley v. Natl. Fedn. of the Blind of North Carolina, Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988).
{¶ 31} Having determined that the statute implicates the First Amendment, the next question is the proper test to determine the statute‘s constitutionality. Citing United States v. O‘Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 67 (1968), the state suggests that we should apply intermediate scrutiny because the statute combines speech and nonspeech elements.1 The United States Supreme Court, however, has limited the application of O‘Brien to content-neutral restrictions on speech. See Erie v. Pap‘s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Ward v. Rock Against Racism, 491 U.S. 781, 798-799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). And the Supreme Court has determined that all compelled speech is content based, a conclusion that would suggest that O‘Brien is inapplicable here. Riley at 795. Nevertheless, I find it unnecessary to consider whether intermediate scrutiny might be appropriate because I am convinced that
{¶ 32} Under strict scrutiny, a content-based regulation of speech will be upheld only if it is narrowly tailored to achieve a compelling governmental interest and it is the least restrictive means of doing so. Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 564, 567, 733 N.E.2d 1152 (2000), citing United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Here, the government has two interests at stake. First, the government has an interest in limiting the spread of the HIV virus. Public health is an important governmental concern. See, e.g., Mussivand v. David, 45 Ohio St.3d 314, 318-319, 544 N.E.2d 265 (1989). Second, the government has an interest in ensuring informed consent to sexual relations. Our society has long criminalized nonconsensual sexual relations. See
{¶ 33} In challenging the statute, the appellant, Orlando Batista, points out that remarkable strides have been made in the treatment of acquired immune deficiency syndrome (“AIDS“). He notes that HIV-positive individuals “can expect to live into their 70s” and “[w]hile there is no cure or vaccine for HIV/AIDS, it is not invariably fatal.” In other words, Batista argues that the health risks from infection with the HIV virus are not really all that bad. But the question is who gets to evaluate that risk: should the HIV-positive individual get to assess that risk for his sexual partner or should the partner get to make her own decision. Fair to say that most—if not all—people would insist on the right to make that decision for themselves.
{¶ 34} The facts of this case illustrate vividly what is at stake. In enacting the regulation in question, the government was protecting the victim‘s right to make her own choice about whether to engage in risky sexual relations. Though Batista invokes his right not to be forced to speak, the victim‘s rights in this case are at least equally worthy of protection. I would conclude that the interrelated interests of the government that are manifest in the statute—protecting public health and ensuring informed consent—rise to the level of a compelling governmental interest.
{¶ 35} Moreover, I would conclude that the means chosen by the state to further these interests is narrowly tailored and constitutes the least restrictive means of doing so. Under the statute, a person must disclose his HIV status only if he wishes to have sex and then only to the person with whom he wishes to have
{¶ 36} Nor do I find merit to Batista‘s equal-protection claim. Relying upon its conclusion that the statute regulates conduct, not speech, the majority applies rational-basis review to the classification. My conclusion that the classification affects a fundamental right causes me to apply a higher level of scrutiny. See State v. Williams, 88 Ohio St.3d 513, 530, 728 N.E.2d 342 (2000). I end up in the same place as the majority, however: because the statute is narrowly tailored to serve a compelling governmental interest, there is no violation of Batista‘s equal-protection rights under the Ohio or United States Constitutions.
{¶ 37} For these reasons, I concur in the majority‘s judgment that there has been no violation of the rights guaranteed to Batista under the First Amendment or the Equal Protection Clauses of the Ohio or United States Constitution.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
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 on behalf of amicus curiae Ohio Attorney General Michael DeWine.
Elizabeth Bonham and Joseph Mead; and Jeffrey Gamso, urging reversal for amici curiae American Civil Liberties Union of Ohio Foundation, Inc., and Center for Constitutional Rights.
Valerie Kunze, Assistant State 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 Liberal Rights, Office of the Ohio Public Defender, and Treatment Action Group.