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State v. Batista

Supreme Court of Ohio

October 26, 2017

The State of Ohio, Appellee,
v.
Batista, Appellant.

          Submitted May 17, 2017

         Appeal from the Court of Appeals for Hamilton County, No. C-1500341, 2016-Ohio-2848.

          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 Lesbian Rights, Office of the Ohio Public Defender, and Treatment Action Group.

         Syllabus

         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 the human immunodeficiency virus 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.

          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 ...


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