Under Ohio Revised Code 2903.11(B)(1), it is considered felonious assault, a second-degree felony, for a person who knows she is HIV positive to knowingly have sex without first disclosing her HIV status to her sex partner. In 2014, Orlando Batista was convicted under this statute in the Hamilton County Court of Common Pleas after he had sex with his girlfriend without first disclosing his HIV-positive status to her. The Court sentenced Batista to the maximum penalty of eight years in prison. Batista appealed to the First District on the grounds that R.C. 2903.11(B)(1) violates the Equal Protection Clauses of the Ohio and U.S. Constitutions, and the Free Speech Clause of the U.S. Constitution. Judge Stautberg, writing for the Court of Appeals on May 6, 2016, affirmed the trial court’s judgment. Batista, represented by the Hamilton County Public Defender, filed a jurisdictional appeal to the Ohio Supreme Court.

Legal Theory

Ohio’s HIV criminalization statute R.C. 2903.11(B)(1) compels speech in violation of the First Amendment, and discriminates against HIV positive people in violation of the Equal Protection Clause of the Fourteenth Amendment.

Status Update

On June 20, 2016, we filed an amicus brief in support of Appellant Mr. Orlando Batista’s Memorandum in Support of Jurisdiction urging the Supreme Court of Ohio to hear the appeal. The brief was written by cooperating attorney (and former ACLU of Ohio Legal Director) Jeff Gamso. The following organizations were signatories: Center for HIV Law and Policy, Ohio Association of Criminal Defense Lawyers, Ohio Public Defender, Cuyahoga County Public Defender, National Association Of Criminal Defense Lawyers, Center for Constitutional Rights, National Center For Lesbian Rights, Human Rights Campaign, GLBTQ Legal Advocates and Defenders (GLAD), National LGBTQ Task Force, Gay and Lesbian Medical Association, American Academy Of HIV Medicine, Treatment Action Group, and Nueva Luz Urban Resource Center. On July 13, the State filed a Memorandum in Opposition to Jurisdiction. On October 5, 2016, the Supreme Court of Ohio decided to hear the case.

On December 27, 2016, we filed an amicus brief on the merits on behalf of the ACLU and the Center for Constitutional Rights. Our amicus addressed the First Amendment implications of the statute and asked the Court to reverse Mr. Batista’s conviction and strike down the statute as unconstitutional. Many of the above-mentioned organizations that were signatories to our June amicus filed a separate brief, authored by the Center for HIV Law and Policy, addressing equal protection issues. Mr. Batista’s merits brief was filed December 27, 2016.

On February 15, 2017, the State filed its opposition brief and the Ohio Attorney General filed an amicus brief. Mr. Batista filed his reply on March 7, 2017. Oral arguments were held on May 17, 2017. On October 26, 2017, the Ohio Supreme Court issued a decision upholding Mr. Batista’s conviction. The Court held that R.C. 2903.11(B)(1) does not violate the First Amendment because it regulates conduct rather than speech, and does not violate equal protection because it is rationally related to the state’s legitimate interest in preventing the transmission of HIV. Since 30 days have passed, the time for appeal has expired.

Date filed

June 16, 2016