On March 10, 2009, an Idaho grand jury charged Kerry Stephen Thomas with seven felony counts of violating Idaho Code Section 39-608 by "transferring or attempting to transfer any of his bodily fluid, to-wit: semen and/or saliva by genital to genital and/or oral to genital contact, without disclosing his infection of the human immunodeficiency virus (HIV)."
"Not to punish you severely would depreciate the seriousness of this crime and this continuing conduct," District Judge Michael E. Wetherell said during Thomas' sentencing, according to court transcripts. "The individual with which you had the sexual relationship did not know of your HIV status."
Thomas, a longtime Idaho resident and former Boise State University basketball player, was subsequently served the indictment on March 19, 2009, since he was in Ada County Jail, following an arrest for violating parole by visiting his son in Oregon without permission. Thomas had been a parolee since 2003 for violating the very same HIV disclosure statute in a 1996 incident for which he was found guilty by a jury and served seven years in prison.
In both cases, Thomas did not infect his accusers with HIV nor was this fact ever considered relevant in either case. In both cases, Thomas was found to have violated the statute by not disclosing his HIV status to his accusers prior to engaging in sexual intercourse with them.
"I was very frustrated, angry, embarrassed, scared--not only for myself but my family," Thomas said to BW.
While meant as a safeguard for communities "to protect the public health," Idaho's HIV disclosure law has led to lengthy prison sentences for its violators, confusion for those living with the virus and criticism for its antiquated language by legal and scientific communities.
Prior to Thomas' parole violation, he had been working as an agent manager for a Boise-based real estate brokerage company for several years. He was charged with engaging in at least seven sexual acts with a co-worker he had known for several years but not disclosing his HIV status to her until he was confronted by her and several of her friends about it.
Approved by the Idaho Legislature on March 24, 1988, and later signed into law by then-Gov. Cecil Andrus, the HIV disclosure law outlines definitions, punishment and defenses, stating, "Any person who exposes another in any matter with the intent to infect or, knowing that he or she is or has been afflicted with acquired immunodeficiency syndrome (AIDS) ... or other manifestations of human immunodeficiency virus (HIV) infection, transfers or attempts to transfer any of his or her body fluid ... to another person is guilty of a felony and shall be punished by imprisonment in the state prison for a period not to exceed 15 years."
The term "transfer" is defined as any kind of sexual act, whether it be "genital-genital," "oral-genital" or "anal-genital" contact, regardless of whether HIV was transferred, protection was used or there were other factors which would greatly diminish the possibility of infection.
"I am HIV positive"
The focus of the 1988 statute is that "full disclosure" must occur prior to sexual contact.
"You have to disclose," said Jean Fisher, deputy prosecuting attorney for Ada County--who represented the state in both of Thomas' cases--regarding persons who are HIV positive and wish to engage in sexual acts with noninfected individuals. But the statute does not stipulate what exactly constitutes disclosure. Fisher agrees that unlike other sexual crimes where the burden of proof is on the accuser, the responsibility under the Idaho HIV disclosure law is on the infected individual.
"Yes, clearly, the statute puts the onus to make full disclosure on the defendant," Fisher said.
The statute does not elucidate what it defines as "full disclosure," and the language of the law has remained unamended by the Legislature since 1988.
For an HIV-positive individual, verbally disclosing his or her status in the form of "I am HIV positive" creates a legal gray area.
"Like most sex cases, a lot of it is on a 'he said, she said' basis," Fisher explained.
Thus, short of providing a notarized affidavit signed by both the HIV-positive individual and his or her sexual partner, the possibility of being prosecuted under the disclosure statute remains, though Fisher stated the Ada County Prosecutor's Office takes all evidence into account before considering filing criminal charges.
As for Thomas, who tested positive for HIV in 1988, "disclosing is very difficult," he said, adding that while being HIV positive is in itself a big deal, particularly for sexual partners, "It's not something I wake up in the morning and first think about."
His thoughts in the mornings prior to his arrest in 2009 were more toward the health and well-being of his son and work issues.
"When you're dealing with a chronic illness, it's not always your first thought, your primary concern," Thomas said.
According to the Centers for Disease Control and Prevention's website on HIV/AIDS, after a person tests positive for antibodies to HIV, tests measuring how much virus is in a sample of blood--the viral load--and the condition of a patient's immune system--a T-cell count--are typically ordered by health care providers.
There is no scientific consensus on when a person with HIV should begin treatment, commonly referred to as Highly Active Antiretroviral Therapy. It is not uncommon, given the power of these medications, for a person on HAART to develop a registered viral load of "undetectable." That means the amount of virus is so low, it cannot be measured by a machine.
According to a study done by the Federal Commission for HIV/AIDS in Switzerland and cited in a story published in the Pacific Northwest Inlander, it is functionally impossible for someone with such a low viral load to transmit HIV to a sexual partner, especially when other precautions such as condom use are used.
However, whether a person has an undetectable viral load, an above-average T-cell count, if he or she used a condom or even if he or she intended to infect another person, according to state law, these factors are irrelevant.
According to a sworn affidavit signed July 19, 2012, and filed in the 4th Judicial District Court in Thomas' case, Dr. James C. Roscoe--an HIV specialist and staff physician with Boise-based Wellness Center--confirmed that Thomas was taking HAART in November and December 2008, when he was accused of engaging in sexual relations without disclosing his HIV status.
"As a result of initiating HAART," Roscoe stated, "Mr. Thomas' HIV RNA viral load was noted to be undetectable on Nov. 20, 2008. Additional HIV RNA viral load testing on Dec. 11, 2008, and May 11, 2009, also were undetectable."
"There are a lot of variables, from what I understand, in the way my case was prosecuted, which aren't important," Thomas said. "It's irrelevant."
Facing several felony counts--each of which carried a maximum of 15 years in prison--Thomas said he was advised by his court-appointed attorney, John Geddes, to accept a plea deal from the Prosecutor's Office and plead guilty to two of the seven counts, saving him from the possibility of serving nearly 105 years behind bars if he pled not guilty to all the charges and faced a jury trial.
"It's not like I did it [accepted the plea deal] to get off the hook of the other charges. I wanted to sit down and actually have a conversation about the actual statute, but it didn't turn out that way," Thomas said.
When he was sentenced on Sept. 16, 2009, before District Judge Michael E. Wetherell, Thomas' accuser spoke as a witness for the state. When describing her reaction when Thomas confirmed his HIV diagnosis, she stated, "I lit into him. I started screaming and yelling and crying and asked him why he would do something like that. I told him I was a mother. I wanted to be a grandmother. And I couldn't understand why he would risk my safety."
"This community must be protected," said Fisher. "Mr. Thomas doesn't understand that every time he has sex with another person who doesn't protect themselves or doesn't have the ability to protect themselves, that he's potentially giving them a death sentence."
In the end, Thomas was sentenced to 30 years in prison with 10 years fixed, five years indeterminate for each charge and that the sentences be served consecutively.
Thomas was also sentenced to three years for violating his parole by visiting his son in Oregon, to be served consecutively to the other sentences.
According to public defender Geddes' testimony at Thomas' sentencing hearing, other states which have nondisclosure laws list violations of those laws as misdemeanors, not felonies, unless an intent to infect another person with HIV is proven.
"A lot of people disagree with that statute. Judge, I'm not here to dehumanize or to support that statute one way or another. It's a statute. It's a law in the state of Idaho and we're bound by it. But there are a lot of people that feel it's not a very enlightened approach," Geddes stated. Prison time, let alone 15 years of incarceration, would then not usually be a possible sentence, but rather a year or less in county jail.
According to the Sero Project, a nonprofit human rights organization that promotes the decriminalization non-disclosure, Idaho is one of a handful of states with HIV-specific statutes that carry stiff punishments. North Dakota and South Dakota have similar laws but with a possible maximum of 20 years in prison. Other states, such as Washington, list attempted exposure of HIV as "assault," with a maximum penalty of 318 months--or just more than 26 years--per charge. In the United States, 36 states and territories have HIV-specific criminal laws.
Sero Project officials point to the case of Nick Rhoades, an HIV-positive Iowa man who used a condom, had an undetectable viral load and did not infect his partner, but was sentenced to 25 years in prison for not disclosing his HIV status.
After worldwide outcry against his excessive sentence, his sentence was reduced and Rhoades served one year. When he was released, he was required to register as a sex offender and had to undergo sex offender therapy comparable to that of convicted rapists and child molesters.
Others outside of Idaho have had their imposed sentences reduced in cases where no intent to infect was proven. But Fisher doesn't agree, stating she wished there were similar laws for not disclosing other sexually transmitted diseases, including herpes.
The disclosure statute was passed during the apex of the country's AIDS panic and uses language that today would make the average microbiology student cringe. The statute lists transmissible fluids of HIV as "semen, blood, saliva, vaginal secretion, breast milk, and urine."
Idaho State epidemiologist Dr. Christine Hahn stopped short of stating the possibility of HIV transmission through saliva was scientifically impossible, but in a written statement told BW that, "At the time that Idaho's law was passed in 1988, it was believed that saliva was a transmissible fluid for HIV. Since then, scientific studies have more clearly defined the body fluids that are the primary transmitters of HIV, but this doesn't prove that saliva cannot, on occasion, transmit HIV.
"Although HIV has been detected in both saliva and urine, it's only in very small quantities and has not been documented to transmit HIV."
Fisher, citing her own research for Thomas' 2008 case, agreed that, at the very least, the statute should be amended to reflect the omission of saliva as a transmissible bodily fluid.
"That's what we should be doing to amend the statute," Fisher said.
Thomas' case is just one of many where the issue of possible HIV transmission was deemed irrelevant, even by the Idaho Supreme Court.
In State of Idaho v. Mubita, an HIV-positive Moscow man was found to have been in violation of the disclosure statute even though in one of his charges, he was found to have performed oral sex on his accuser, an act highly unlikely to result in HIV transmission.
Mubita was also taking medications to lower his viral load at the time of the incident. The Idaho Supreme Court unanimously upheld his 11 felony convictions of violating the disclosure statute and his sentence.
The possibility of HIV infection in Idaho v. Mubita was not relevant to the Supreme Court justices because such language does not exist in the 1988 law.
"We need not go beyond the plain language of the statute," wrote Justice Jim Jones in his June 11, 2008, opinion.
An Inhibition to HIV Prevention
While Allies Linked for the Prevention of HIV and AIDS--a nonprofit HIV prevention organization--does not usually step into the policy arena, Matt Eldredge, interim president, believes the disclosure statute actually inhibits the state's ability to lower HIV infection rates.
"We're so backward in Idaho," Eldredge said. "There's never been a documented case of transmission [through saliva or urine]," he said. "It's impossible."
Thomas agrees that if the legislative intent of the statute was to lower new cases of HIV, it's demonstrably not working.
"If our intent is to stop the spread of the disease, I think there is a body of evidence that would support that this type of statute in general is counterproductive," Thomas said, adding that those who didn't know their HIV status are barred from prosecution.
"It's not a stretch to understand that this type of law discourages you from getting tested [for HIV]," he said.
Thomas said if he didn't get tested and learn his HIV status, it's possible he would have never faced prosecution. He'd be a free man.
"It seems to me [the law] is talking about that guy, the one who wants to infect someone with this illness," Thomas said.
According to the CDC, approximately one in five people living with HIV in the United States does not know he or she is infected, thus they are not medicated and therefore more likely to infect others. Eldredge said that studies have shown that after initial infection with the AIDS virus, a patient's viral load skyrockets as the body scrambles to figure out how to fight it.
"Then the viral load lowers and plateaus," he said with a dip of a flat hand moving in the air in front of him.
The body's natural lowering of the viral load makes a patient still infectious, but not nearly as infectious if he or she were to get tested and treat the HIV with medication to reduce viral replication.
Eldredge and others who want to see non-disclosure decriminalized firmly believe that disclosure is not necessary if a person has an undetectable viral load and a condom is used.
Ultimately, Eldredge believes the largest problem with the HIV disclosure statute and HIV prevention in general is a lack of education.
"There's a lot of fear [regarding HIV] in this state," he said.
According to Eldredge and Thomas, there is no effort to have the HIV disclosure law in Idaho either amended or repealed, and no legislation to do so has been considered by a legislative committee since the statute was first passed.
Today, Thomas' case is still in the appeals process. He has served nearly four years at the Idaho State Correctional Center, where he has proper medical care, including expensive daily medications to keep his HIV viral load undetectable.
He lives in the general prison population and works as a janitor to earn money for phone calls to his son and assorted essentials.
While Thomas regrets the circumstances that brought him to where he is, including engaging in a sexual relationship before first admitting his status, he wishes most that he had been more of a leader and role model in the fight against HIV discrimination and criminalization.
His advice to individuals in Idaho: "Get tested, No. 1. It's so empowering to know what your status is. The more you know about HIV, the less stigma, the less fear that will be associated with it. Learn as much information as possible."
As far as those who are HIV positive and want to be in a relationship, Thomas acknowledges he didn't do the right thing: being upfront about his HIV status. "You have to be 100 percent open with your partner."
Editorial note: Taylor Craig Newbold is a former founding board member of Allies Linked for the Prevention of HIV and AIDS.