Petition for Writ of Certiorari — Orlando Batista, Petitioner v. Ohio

IN THE SUPREME COURT OF THE UNITED STATES

ORLANDO BATISTA, Petitioner

v.

STATE OF OHIO, Respondent

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

PETITION FOR WRIT OF CERTIORARI

Law Office of the Hamilton County Public

Defender

By: JOSHUA A. THOMPSON*

RAYMOND T. FALLER

DEMETRA STAMATAKOS

Law Office of the Hamilton County

Public Defender

230 E. 9th St., Second Floor

Cincinnati, OH 45202

(513) 946-3863

jathompson@cms.hamilton-co.org

Counsel for Petitioner Orlando Batista

*Counsel of Record

March 23, 2018

Question Presented

Whether Ohio’s felonious assault statute, Ohio Rev. Code Ann. §

2903.11(B)(1), a second-degree felony that requires a person who knows he or she

has tested positive for HIV to disclose that status in advance to a potential sexual

partner, is subject to strict-scrutiny analysis under the First Amendment to the

United States Constitution and the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.

Table of Contents

Page No.

Question Presented... ccceccccsssccccsscceceeseccceseeccceeececaeecesseeeeeeaeeceseeecesaeeecesuecesaeeceeeaeeeeeea 1

Table of Contents .........cccccccccccccccssssseeeeeeeeeeeeaseeeeeeeeeeesaeeeeeeeeeeeeeaseeseeeeeeessaaesseeeeeeeaeeaaaaaeses ia

Table of AUthorities ...........cccccccccsseesscccecceecaseeseecceeeeeaseeeeeeeeeeaaeaseeseeeeeeessuaeeseeeeeeeeaaaaensees i

Parties to the Proceedings and.........ccccceccccsseccccesecccecsecceseeeceeseceeaeecceseeecesaeeceeaeeceeaeeeeeees 1

Corporate Disclosure Statement ..........cccccccceccccsscccssccececccseceesecceeceesecceneceeseceaneceeeeeeaeess 1

Petition for Writ of Certiorar ............cccccccccsssessccccceecasseeeeecceeesaeeeeeeceeeessaesaeseseceeeesaaensees 1

Opinions Below ..........cccccccccseccssecceseccceseccuseccuecccenccceeccseceeeceseceaeeceeeceueceaneeeeneeeeeeeeeeesees 1

JULISCICTION ........ccceseeccccceseeececeeeeeeeeeeeaeeeeeeeeseeeeeeeeeeeeeeeeeseeeeeeeaeeseeeesseaseeeesaaseneeessuanseeseaaegss 1

Relevant Constitutional and Statutory Provisions ............ccccccssecccesecccceecceaesceeeeeceeaaees 1

Statement Of the Case ......ceccccccccccsssssseeccceeeeaseeeeeeeeeeeeeeeeeeeeeeeeeseesaseeeeeeeeeeesaeeeeeeeeeeeeaaaea 2

A. Orlando Batista was charged with failing to disclose his HIV-positive status

prior to engaging 1N SexUal CONCUCL..........cccccceeccccseeccceecceeceececseeceeaeeceeaeeceeaeeecesaeeceees )

B. On appeal, Ohio courts disagreed about whether Ohio Rev. Code Ann. §

2903.11(B)(1) regulates speech, but held that it survives any level of scrutiny

under the First and Fourteenth Amendments. ............cccccceccccssecccceeeceeaecceaeecceeeeeceees 6

1. Court of Appeals of Ohio, First District, Hamilton County opinion. .......... 6

2. Ohio Supreme Court Majority OPINION. ..........cccecccceecccceecceeessececeeececeneceeueeees 7

3. Ohio Supreme Court CONCULLING OPINION. ...........cccccseescceeeeccceeeececeeeceeeeecesaees 9

Reasons for Granting the WYrit......... ccc cccccccccssseccecceeseeeccecaeecceesaeecceeuaneceeeaueeeceeaaees 10

I. State courts are split over the appropriate level of scrutiny for similar

STATUTES... eeceeeccceecceseccnsscenecenseeeneeceeeeeeeseceeeeeeeeeeseeseceeseeeeceeesceneeeeeeseeeseeeeeeeeeeeeeesenens 10

II. Ohio’s felonious assault statute 1s motivated by an animus toward

historically marginalized QroupS. ........ccccseccccssseccceeececaeecccceeccecaeceeeuecceseccsssaecesaeeees 13

III. The Ohio Supreme Court’s decision contravenes this Court’s precedent..... 16

IV. This Case is an ideal vehicle for settling the correct standard of review for

determining the constitutionality of statutes compelling disclosure of one’s HIV

status prior to engaging 1n Sexual CONCUCE........ ec eecccseeccceeeccceeeececeeeceeeeecceuseecesaees 19

CONCIUSION ...........ccsceccecesceccececcsceccsceccececcececeececeececeececcesceceseeceseeceseecsseecesescesescesescesescucess 21

Appendices

APPENDIX A: Application for Extension of Time to File Petition for Writ of

Certiorarl, January 9, 2018........cccc ccc ees esce ence ence eee eens eens eee esas eeeeeeeseeeseeneeeenees la

il

APPENDIX B: State v. Batista, 1st Dist. Hamilton No. C-150341, 2016-Ohio0-2848,

64 N.E.8d 498.00... ccc ccc ccc c ese ececeeeecsseseeceseeeesseeeeseeeesseeeeeeseeeeeeeessseesseeeeeeeeeeeeees 6a

APPENDIX C: State v. Batista, 151 Ohio St.3d 584, 2017-Ohio-8304, 91 N.E.3d

Table of Authorities

Page No.

Cases

Falk v. State Bar of Michigan, 418 Mich. 270, 342 N.W.2d 504 (1988) .........ceeeee 12

Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520

CSc) 3

People v. Jensen, 231 Mich. App. 439, 462, 586 N.W.2d 748 (1998) ........ eee 12

People v. Russell, 158 II]. 2d 23, 25-26, 680 N.E.2d 794, 796 (1994)......... eee 10

Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 103 S.Ct. 948,

TA L.Ed.2d 794 (1988)... cece cccccccsecccesececcceseccceecceeeecesseseceeeeeeseeecesseeeesseeeeeeeeeseees 13

Riley v. Nat'l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 108 8.Ct. 2667, 101

L.Ed.2d 669 (U.S. 1988) ......cc cece ccecccccescccceseecceeececeeecceueeeceeeecsseeeceeaeeeeees 3, 18, 16, 19

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 938 S.Ct. 1278, 36 L.Ed.2d 16

Ss) 3

State v. Batista, 151 Ohio St.3d 584, 2017-Ohio-8304, 91 N.E.3d 724......... 1, 8, 9, 10

State v. Batista, 1st Dist. Hamilton No. C-150341, 2016-Ohi0-2848, 64 N.E.3d

eS ee 1,6, 7

State v. Musser, 721 N.W.2d 734, 740-45 Towa 2006) ..........ccccceccccessccceecseeeseceeeneess 11

State v. S.F., 483 S.W.3d 385 (Mo. 2016)... ccc cccccccescccesssecceeeececeeecseeeeccsseeeceeeneess 12

Turner Broad. Sys. v. FCC, 512 U.S. 622, 642, 1148.Ct. 2445, 129 L.Ed.2d 497

(199A) Loi ece ci ceccccceescccceneccccueecccueeecseeececeececuesceseeecsseuscseuescsssueesssueecessueeessueeeseueeseees 13

West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628

(1948) Loe eeccccecccccesscccesccecceecccuuecceeuseceseececeeeccsseecssueeceesescsssuecesueecesssueceeseeessseeseees 13

Williams v. Rhodes, 393 U.S. 28, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)... eeee eee 3

Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)

bececuececuucccuucccusccuuecseuecseuucsescsuecsuuccsuueceuuesssuuseeuucseuuceceucseuecseuecsuecseuecssuecsueeceuseceueceueesees 16

Statutes

28 U.S.C. § LST cecccccccssccccecseecccecsseeeceeeseeeceeesaeeeeeeseeessecesesaeeecsesaeeeeceeaueeceeesaeeeeeeeaes 1

720 Ill. Comp. Stat. Ann. 5/12-5.01 oo. cccccccccceccccsecccesecceseceaeccancceesceeeecesseeceeseseues 11

TH. Rev. Stat.1989, ch. 38 voce ceccsccceccsccsccscenccescescesscessescecsesssessescesseescesceeces 10, 11

Towa Code Ann. § TO9C.1......cceccccccccssccccccssseeeccccaeeecceesaesecceeseeeeceeeueasecsssaaeceeeaaeeeceeeaes 11

Mich. Comp. Laws § 333.5210... ecccccssecccessccecesececeeecceseeeceseecesaeeceesseeeceeeeeeesaeeseeea 12

Mo. Rev. Stat. 191.677 .....ccccccccccccccscccecccscccscccecceuccuucceuccusceueceescceessesceeseeeseseseeesesesenss 12

Ohio Rev. Code Ann. § 2908.11 oc. ecccccccssscccccessseeeceecsseecceecueeeceeeuaeecseeaaeeeeees passim

Ohio Rev. Code Ann. § 2907.01 .....cecccecccccccssseccceaseseecceeaseeccceeaeeecceesueeeceseeeueeseeeeaaeeeeeas 2

11

Other Authorities

Andrew J. Gordon, End Around: HIV Discrimination in the Post-Amendments Act

Workplace, 36 Berkeley J. Emp. & Lab. L. 215 (2015)... ccc cccecccceeeeeeenees 14

Angela Perone, From Punitive to Proactive: An Alternative Approach for

Responding to HIV Criminalization That Departs from Penalizing Marginalized

Communities, 24 Hastings Women’s L.J. 363 (2018) oo. eeeeecceeeeeeeeeeees passim

Gregory M. Herek, Heterosexuals’ Attitudes Toward Lesbians and Gay Men:

Correlates and Gender Differences, 24 J. OF SEX RESEARCH 451 (1988)......... 15

Gregory M. Herek, IlIness, Stigma, and AIDS, Psychol. Aspects of Serious Illness:

Chronic Conditions, Fatal Diseases, & Clinical Care 131 (Paul T. Costa, Jr. &

Gary R. VandenBos eds. 1990)...........ceccccseccccssecccaeescecaeeeccaueeceeeeeeeauecessueeessaeseesqegs 15

Paula A. Treichler, AIDS Homophobia, and Biomedical Discourse: An Epidemic of

Signification, 43 AIDS: Cultural Analysis 31 (1987)... ceecccccesseeeceeneeees 4,13, 18

Peter Conrad & Alison Angell, Homosexuality and Remedicalization, 41 SOCIETY

Sk 0-100) cee 14

Ronda B. Goldfein & Sarah R. Schalman-Bergen, From the Streets of Philadelphia:

The AIDS Law Project of Pennsylvania’s How-to Primer on Mitigating Health

Disparities, 82 Temp. L. Rev. 1205 (2010) ..... ce ecceeccccccsseeececcesseeeceeeaeneeeeenseeeeees 15

The Center for HIV Law and Policy, Sourcebook on State and Federal HIV Criminal

Law and Practice (2017), https://www.hivlawandpolicy.org/sourcebook ............... 20

Constitutional Provisions

First Amendment, United States Constitution ..........cccccccccccccceccsesceecceeseusseesseness 1, 3, 8

Fourteenth Amendment, United States Constitution ..........ccccceecceeceseccesccssecessceseeens 2,3

1V

Parties to the Proceedings and

Corporate Disclosure Statement

There are no parties to the proceeding other than those listed in the caption.

Under Rule 29.6, Petitioner states that no parties are corporations.

Petition for Writ of Certiorari

Petitioner Orlando Batista respectfully petitions for a writ of certiorari to

review the judgment of the Supreme Court of Ohio.

Opinions Below

The Opinion of the Supreme Court of Ohio, filed on October 26, 2017, in Case

No. 2016-0908, is reported as State v. Batista, 151 Ohio St.3d 584, 2017-Ohio-8304,

91 N.E.38d 724, and reproduced at App. 1la. The Opinion of the Court of Appeals of

Ohio, First Appellate District, Hamilton County, filed on May 6, 2016, is reported as

State v. Batista, 1st Dist. Hamilton No. C-150341, 2016-Ohio0-2848, 64 N.E.3d 498,

and reproduced at App. 6a.

Jurisdiction

The Supreme Court of Ohio entered its judgment in this case on October 26,

2017. On January 12, 2018, Justice Kagan granted an extension of time of 60 days

to file this petition for writ of certiorari until March 25, 2018. App la. This Court

has jurisdiction under 28 U.S.C. § 1257(a).

Relevant Constitutional and Statutory Provisions

The First Amendment to the United States Constitution provides 1n relevant

part: “Congress shall make no law... abridging the freedom of speech... .”

The Fourteenth Amendment to the United States Constitution provides, in

relevant part: “nor shall any State... deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

Ohio Rev. Code Ann. § 2903.11 provides in relevant part:

(B) No person, with knowledge that the person has tested positive as a carrier

of a virus that causes acquired immunodeficiency syndrome, shall knowingly

do any of the following:

(1) Engage in sexual conduct with another person without disclosing that

knowledge to the other person prior to engaging in the sexual conduct;

(E) As used in this section:

(4) “Sexual conduct” has the same meaning as in section 2907.01 of the

Revised Code, except that, as used in this section, it does not include the

insertion of an instrument, apparatus, or other object that is not a part of the

body into the vaginal or anal opening of another, unless the offender knew at

the time of the insertion that the instrument, apparatus, or other object

carried the offender's bodily fluid.

Ohio Rev. Code Ann. § 2907.01 provides in relevant part:

(A) “Sexual conduct” means vaginal intercourse between a male and female;

anal intercourse, fellatio, and cunnilingus between persons regardless of sex;

and, without privilege to do so, the insertion, however slight, of any part of

the body or any instrument, apparatus, or other object into the vaginal or

anal opening of another. Penetration, however slight, 1s sufficient to complete

vaginal or anal intercourse.

Statement of the Case

The subsection of Ohio’s felonious assault statute forbidding HIV-positive

individuals from engaging in sexual conduct with other people without first

disclosing their HIV-positive status, Ohio Rev. Code Ann. § 2903.11(B)(1), regulates

speech. It is a content-based regulation because it mandates speech that a speaker

2

may not otherwise make, necessarily altering the speech’s content. Riley v. Natl Fed’n

of the Blind of N. Carolina, Inc., 487 U.S. 781, 782, 108 S.Ct. 2667, 2672, 101 L.Ed.2d

669 (U.S. 1988). Because it is a content-based regulation, Ohio’s felonious assault

statute necessarily must be subjected to strict-scrutiny analysis to determine whether

it violates the First Amendment to the United States Constitution.

Ohio Rev. Code Ann. § 2903.11(B)(1) is also subject to strict-scrutiny analysis

under the Fourteenth Amendment to the United States Constitution because it

impermissibly interferes with the exercise of a fundamental right — free speech. See

Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49

L.Ed.2d 520 (1976); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 3.Ct.

1278, 36 L.Ed.2d 16 (19783); Williams v. Rhodes, 393 U.S. 238, 89 8.Ct. 5, 21 L.Ed.2d

24 (1968).

Ohio’s felonious statute fails strict scrutiny analysis under both the First and

Fourteenth Amendments. The statute is overinclusive because it disregards the

significant differences in transmission risk among different sexual activities (the

statute does not differentiate between high-risk sexual activities and extremely lowrisk sexual activities); does not distinguish between those individuals who take

affirmative measures to prevent transmission (such as prophylactic use); and does

not distinguish among individuals based on factors that affect an individual’s ability

to transmit HIV (such as undergoing treatment, which can reduce an HIV-positive

person’s viral load to the point of not being detectable). Further, Ohio’s statute does

not even require the exchange of bodily fluids for there to be a crime. Digital

penetration, for example, satisfies the sexual conduct element of the statute, yet

carries no risk of transmission. Ohio Rev. Code Ann. § 2903.11(B)(1) & (E)(4) The

statute 1s also underinclusive as it disregards non-sexual methods of transmission,

such as sharing needles during intravenous drug use.

Ohio’s felonious assault statute is not the least-restrictive means of achieving

the governmental interest in preventing HIV transmission. In fact, the state

presented no evidence the statute achieves any governmental interest. Rather,

empirical studies suggest statutes such as Ohio’s actually increase the spread of

HIV through misinformation, and are not likely to increase disclosure or reduce

risky sexual behaviors. Furthermore, Ohio’s statute serves to reinforce outdated

animus-based HIV/AIDS stigma — particularly the belief that the disease remains

prevalent among certain marginalized communities, including homosexual men,

African-Americans — particularly those of Haitian descent, drug users, and

hemophiliacs. Angela Perone, From Punitive to Proactive: An Alternative Approach

for Responding to HIV Criminalization That Departs from Penalizing Marginalized

Communities, 24 Hastings Women’s L.J. 368, 370 (2018), citing Paula A. Treichler,

AIDS Homophobia, and Biomedical Discourse: An Epidemic of Signification, 43

AIDS: Cultural Analysis 31, 44 (1987).

Finally, less-restrictive alternatives to compelled disclosure of one’s HIV-

status prior to sexual conduct include: (1) require disclosure of all dangerous

contagious diseases, not just HIV/AIDS; (2) require purposeful or reckless exposure

to the disease, rather than prior disclosure of the disease; (8) require transmission

of the disease, or conduct with a substantial likelihood of transmission, rather than

the current statute which includes sexual activities that do not expose one to the

disease, such as digital penetration; (4) reduce the punishment for the crime to a

harm-based analysis rather than a disease-based analysis or provide for civil

remedies rather than criminal punishment of up to 8 years in prison.

A. Orlando Batista was charged with failing to disclose his HIV-positive

status prior to engaging in sexual conduct.

Mr. Batista was convicted of felonious assault after a no-contest plea for

engaging in sexual conduct while knowing he was HIV positive and not disclosing

his status to his sexual partner under Ohio Rev. Code Ann. § 2908.11(B)(1). Prior to

entering his no-contest plea, Mr. Batista filed a Motion to Dismiss challenging the

constitutionality of Ohio Rev. Code Ann. § 2903.11(B) on state and federal Equal

Protection, federal freedom of speech, and void for vagueness grounds.

Dr. Judith Feinberg, an expert specializing in infectious diseases with a

subspecialty in HIV care and research testified about the remarkable advances in

HIV/AIDS treatment. Beginning 1n 1987, there was some progress in HIV/AIDS

treatment; drug treatment improved again after 1991, but it would still ultimately

fail because at the time there were only two drugs, and both targeted the same

mechanism in HIV. After the introduction of a second class of drugs in 1995 and

1996, there was a significant decrease 1n the mortality rate, and people had

“miraculous recoveries.” By 1997, HIV/AIDS deaths fell by nearly 50%, and by 1999

had fallen an additional 20%. The decline has since leveled off because people

remain undiagnosed, and others do not get care. Overall, however, HIV/AIDS

»)

deaths fell from more than 51,000 in 1995 to about 16,000 in 2002. Despite the

remarkable advances made in 1995 and 1996, the Ohio Legislature passed Ohio

Rev. Code Ann. § 2903.11(B) in 2000. Meanwhile, Hepatitis C-related deaths have

increased significantly — to the point that more people in the United States now die

from Hepatitis C each year than from AIDS.

Today, treatment for HIV is a single, once-daily pill for patients. Side effects

from the medications have been substantially minimized, and the majority of

patients have no side effects at all. There are now more than 30 drugs available to

treat HIV; therefore, healthcare providers have a variety of options to find the right

medication for each patient. Further, the array of medications available has also

addressed the problem with drug resistance. As a result, life expectancy for people

living with HIV has substantially increased. HIV-positive individuals diagnosed

today at age 20 can expect to live into their 70s, which is comparable to the life

expectancy of the general HIV-negative population — approximately 75 to 78. While

there is no cure or vaccine for HIV/AIDS, it is not invariably fatal.

B. On appeal, Ohio courts disagreed about whether Ohio Rev. Code Ann. §

2903.11(B)(1) regulates speech, but held that it survives any level of

scrutiny under the First and Fourteenth Amendments.

1. Court of Appeals of Ohio, First District, Hamilton County opinion.

Ohio’s First District Court of Appeals unanimously concluded that Ohio Rev.

Code Ann. § 2903.11(B)(1) is a content-based regulation on speech, and therefore

subject to strict scrutiny analysis under the First Amendment. Batista, 64 N.E.3d at

502. It rejected Mr. Batista’s argument, holding the state has a compelling interest

in stopping the transmission of HIV and that the statute is “narrowly drawn.” Id. It

so held because:

The statute requires disclosure only to potential sexual partners—persons

who would be directly affected by a lack of such knowledge. In this way, a

potential partner may elect not to engage in sexual conduct, or may take

measures to ensure that the virus is not spread during sexual relations.

Further, there is no requirement that the public in general be informed of an

infected person's HIV status, or that this information become public in any

way. Id.

Regarding Equal Protection, Ohio’s First District found, “Batista’s equal

protection challenge does not involve a ‘fundamental' right’ or suspect classification’

warranting strict scrutiny".” Id. at 501. Therefore, it applied rational-basis review,

finding “[s]topping the spread of HIV is a legitimate state interest” and “[r]equiring

an individual to disclose his or her status before engaging in sexual conduct is

rationally related to stopping the spread of HIV.” Id. It concluded, holding:

The state does not have to take criminalize every failure to disclose a

sexually-transmitted disease to make the statute at issue comport with the

Equal Protection Clauses of the state and federal constitutions. Nor does the

fact that HIV is more easily treatable than in the past affect our analysis. It

cannot be disputed that the state has a legitimate interest in stopping the

spread of HIV. And there is a rational relation between this goal and

requiring disclosure of an HIV-positive status before engaging in sexual

conduct. Batista's first assignment of error 1s therefore overruled. Id. at 501-

502.

2. Ohio Supreme Court majority opinion.

The majority opinion of the Ohio Supreme Court affirmed the judgment of

Ohio’s First District Court of Appeals, although for different reasons. App. 8a. It

held:

Because [Ohio Rev. Code Ann. §] 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. Batista,

91 N.E.3d at 726.

Regarding the First Amendment, the majority opinion reasoned:

Although [Ohio Rev. Code Ann. §] 2903.11(B)(1) requires those who know

they are HIV positive to disclose their status if they choose to engage in

sexual conduct with another person, the disclosure is incidental to the

statute's regulation of the targeted conduct. Thus, this statute regulates

conduct, not speech, and therefore does not violate the First Amendment

right to free speech. Batista, 91 N.E.3d at 729.

Implicit in the majority’s Fourteenth Amendment Equal Protection analysis,

because it held that the statute does not regulate speech, is the holding that the

statute does not implicate a fundamental right. Batista, 91 N.E.3d at 729.

Therefore, the majority analyzed whether the statute implicates a suspect

classification:

The federal Equal Protection Clause does not forbid classification, but it

requires that different treatment be related to the purpose of the law. Here,

the classification is individuals with knowledge of their HIV-positive status

who fail to disclose that status to someone prior to engaging in sexual

conduct with that person. The valid state interest is curbing HIV

transmission to sexual partners who may not be aware of the risk. The

statute’s treatment of individuals with knowledge of their HIV positive status

who fail to disclose that status to a sexual partner furthers the state interest

here. Id. (citation omitted).

The Ohio Supreme Court forewent analysis of Mr. Batista’s argument that

the statute could not even survive rational-basis review, incorrectly dismissing it as

a policy argument. Id. at 729-730. It also dismissed Mr. Batista’s arguments

concerning the underinclusive nature of a focus solely on sexual HIV transmission,

stating, “[s]imply because there are other methods of HIV transmission does not

render the classification here without a rational basis.” Id. at 730. Finally, while the

majority recognized medical advancements in HIV treatment, it would not “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.” Id.

3. Ohio Supreme Court concurring opinion.

Justice DeWine, joined by Justices Kennedy and French, correctly argued

that Ohio Rev. Code Ann. § 2903.11(B) “plainly regulates both conduct and speech,”

compels speech, and is therefore subject to strict-scrutiny analysis. Batista, 91

N.E.3d at 730-731 (DeWine, J., dissenting). However, the concurring opinion

incorrectly reached the conclusion that Ohio Rev. Code Ann. § 2903.11(B) “passes

muster even under the more rigorous strict-scrutiny test.” Id. at 731.

The concurring opinion found the government had two interests: “limiting the

spread of the HIV virus” and “ensuring informed consent to sexual relations.” Id.

The state, however, cannot point to any evidence informed consent was ever a

motivation for the passage for Ohio Rev. Code Ann. § 2903.11(B), nor that it ever

could be the motivation for a felonious assault statute over a rape statute.

In concluding that the statute survives strict-scrutiny under the First

Amendment, the Justice DeWine wrote:

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 sex. The only speech that is compelled is speech that is

directly necessary for informed consent. I cannot fathom—and Batista has

not advanced—any less restrictive or more narrowly tailored means that

could have been employed by the government to achieve its interests here.

Thus, I find no violation of the rights guaranteed to Batista under the First

Amendment. Id. at 731-732.

To the contrary, as Mr. Batista presented, supra, and in arguing to the Ohio

Supreme Court, there are several less-restrictive, more narrowly tailored means to

achieve the state’s interest.

Regarding Equal Protection, the concurring opinion concluded the statute

does impact a fundamental right, which Justice DeWine said “compelled me to

apply a higher level of scrutiny.” Id. at 732. Presumably, he meant strict scrutiny,

as he concluded, “the statute is narrowly tailored to serve a compelling

governmental interest,” and there was no Equal Protection violation. Id.

Reasons for Granting the Writ

I. State courts are split over the appropriate level of scrutiny for similar

statutes.

In addition to there being an internal split in the Ohio Supreme Court

regarding the appropriate level of scrutiny, several other state high courts have

addressed the First Amendment issue presented in this case. All of the high courts

have come to different conclusions about the correct level of scrutiny.

In People v. Russell, the Supreme Court of Illinois concluded the Illinois

statute did not have even the slightest connection with free speech. People v.

Russell, 158 Ill. 2d 23, 25-26, 630 N.E.2d 794, 796 (1994). The statute made it a

crime for “a knowing carrier of the HIV virus to transmit [the] virus to another

person through intimate contact.” Id. The Illinois statute did not require non-

disclosure as an element of the offense. See former I]].Rev.Stat.1989, ch. 38 § 12-

10

16.2(a)(1). However, the Illinois statute also provided that it “shall be an affirmative

defense that the person exposed knew that the infected person was infected with

HIV, knew that the action could result in infection with HIV, and consented to the

action with that knowledge.” Former II].Rev.Stat.1989, ch. 38 4 12-16.2(d).'

Iowa’s statute, like Illinois’ statute, provided that consent would be an

affirmative defense to Iowa’s criminal exposure statute. Former Iowa Code Ann. §

709C.1(5).” In State v. Musser, the Iowa Supreme Court found that Iowa Code Ann.

§ 709C.1(1)(a) (2001), implicitly mandates disclosure of the defendant’s HIV status

to his or her sexual partner. State v. Musser, 721 N.W.2d 734, 740-45 (owa 2006).

The Court further found that the statute was a content-based regulation compelling

speech, and therefore, subject to strict scrutiny. Id. at 743-44 (finding the focus of

that statute was not on the time, place, or manner of the expression, but on the

content of the communication — the statute required disclosing specific information).

Therefore, where the Illinois and lowa statutes both provided that disclosure could

be an affirmative defense, the two states came to polar opposite conclusions about

how the First Amendment was implicated. Illinois came to the conclusion its statute

' The current statute in Illinois, 720 Ill. Comp. Stat. Ann. 5/12-5.01, provides:

(a) A person commits criminal transmission of HIV when he or she, with the specific intent to

commit the offense:

(1) engages in sexual activity with another without the use of a condom knowing that he or she is

infected with HIV;

(d) It shall be an affirmative defense that the person exposed knew that the infected person was

infected with HIV, knew that the action could result in infection with HIV, and consented to the

action with that knowledge.

* The current statute provides the same affirmative defense. Iowa Code § 709D.3(7).

11

had nothing to do with free speech. In contrast, lowa came to the conclusion that

not only was speech implicated, but that the statute was also subject to the highest

level of review — strict scrutiny.

The Missouri Supreme Court has also addressed the issue. State v. S.F., 483

S.W.3d 3885 (Mo. 2016). In S.F., the Supreme Court of Missouri found the burden on

speech was incidental to the conduct. S.F. at 386. The Missouri statute requires

consent of the other party, which necessarily requires disclosure by the HIV-positive

individual to his or her potential sexual partner. See Mo. Rev. Stat. 191.677(2)(a).

Finally, while Michigan’s Supreme Court has not addressed the First

Amendment issue, the intermediate Michigan Court of Appeals has. In People v.

Jensen, the statute at issue in Michigan did require disclosure as an element of the

offense. People v. Jensen, 231 Mich. App. 489, 462, 586 N.W.2d 748 (1998); Mich.

Comp. Laws § 333.5210. The Michigan Court of Appeals, however, erroneously

concluded strict scrutiny does not even apply to compelled speech cases:

It is clear that the Supreme Court does not consider the strict scrutiny

applied in other First Amendment cases to be appropriate in cases involving

negative First Amendment rights. In resolving such claims, ‘the Court has

balanced the severity of the injury to the individual interest against the

magnitude of the government interest sought to be served by the requirement

or regulation. In this manner, the Court has decided whether the complainedof government action constitutes an impermissible First Amendment

infringement.’

Jensen at 462 citing Falk v. State Bar of Michigan, 418 Mich. 270, 287, 342 N.W.2d

504 (1983). The Michigan court then engaged in a balancing test. Id. at 456.

This Court, however, has stated the opposite:

12

Our precedents thus apply the most exacting scrutiny to regulations that

suppress, disadvantage, or impose differential burdens upon speech because

of its content. See Perry Education Assn. v. Perry Local Educators’ Assn., 460

U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Laws that compel speakers

to utter or distribute speech bearing a particular message are subject to the

same rigorous scrutiny. See Riley v. National Federation for Blind of N.C.,

Inc., 487 U.S. [781, 798]; West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624,

63 8.Ct. 1178, 87 L.Ed. 1628 (1943).

Turner Broad. Sys. v. FCC, 512 U.S. 622, 642, 114 8.Ct. 2445, 129 L.Ed.2d 497

(1994). Thus, content-based regulations compelling speech are subject to strictscrutiny analysis.

In sum, the high courts in Ohio, Illinois, lowa, Missouri, and the

intermediate appellate court in Michigan, have addressed the First Amendment

issue without reaching a consensus regarding the appropriate level of scrutiny.

Each of the courts came to different conclusions about what level of scrutiny

applies, if any. This Court should grant Mr. Batista’s writ to settle the dispute and

clarify the appropriate level of scrutiny. The resolution of the dispute is of

particular importance, because it also dictates the level of scrutiny required under

Fourteenth Amendment Equal Protection analysis.

IT. Ohio’s felonious assault statute is motivated by an animus toward

historically marginalized groups.

Ohio Rev. Code Ann. § 2903.11(B) and statutes like it serve to reinforce and

perpetuate outdated HIV/AIDS stigmas. HIV “initially appeared in certain

marginalized communities, including gay men, drug users, hemophiliacs, and

African Americans--particularly immigrants from Haiti.” Perone at 370, citing

Treichler at 44. Even though HIV first appeared as early as 1966 in the United

13

States, the HIV crisis is commonly thought to have started in 1981. Andrew J.

Gordon, End Around: HIV Discrimination in the Post-Amendments Act Workplace,

36 Berkeley J. Emp. & Lab. L. 215 (2015) “Perceptions that the disease was

predominant amongst gay men led to its initial name of GRID (Gay Related

Immune Deficiency).” Perone at 370; Gordon at 248 (‘although pathologists

hypothesized that an infectious agent caused the illness, they nevertheless termed

the condition ‘gay-related immunodeficiency disease,’ or ‘GRID,’ because of its

limited occurrence in gay men”). “The public view of AIDS as a gay disease

prevailed * * *. Accordingly, as HIV incidence increased throughout the 1980s, the

public perception of HIV became framed by hysteria and prejudice against

homosexuals.” Gordon at 248 citing Peter Conrad & Alison Angell, Homosexuality

and Remedicalization, 41 SOCIETY 382, 35-36 (2004) (discussing the two prevalent

medical community views of AIDS, both of which promoted the understanding of

AIDS as a “gay disease’).

“(T]he current reality of HIV demonstrates that improved scientific

understanding of HIV’s pathogenesis has not dissociated the virus from the public’s

view of the gay community, and the public’s associated view of HIV as a gay

disease.” Gordon at 251. In his article, Gordon cites psychologist Gregory Herek who

has studied HIV stigma for decades and has concluded, “the character of AIDS

stigma in the United States derives from widely perceived association between HIV

and particular sectors of the population, especially gay and bisexual men|[.|” Gordon

at 253-54 citing Gregory M. Herek, AIDS and Stigma, 42 AM. BEHAVIORAL SCI.

14

1106, 1108 (1999); Gregory M. Herek, Heterosexuals’ Attitudes Toward Lesbians

and Gay Men: Correlates and Gender Differences, 24 J. OF SEX RESEARCH 451,

473 (1988). “HIV stigma is a ‘convenient vehicle for expressing hostility toward

homosexual persons.’ HIV enmity is a symbolic stigma that manifests as ‘prejudice,

discounting, discrediting, and discrimination directed at people perceived to have

AIDS or HIV, and the individuals, groups, and communities with which they are

associated.” Id. “Herek’s studies of HIV stigma and sexual prejudice commenced in

the late 1980s, and he has repeatedly found that HIV animus is a manifestation of

underlying prejudice against homosexuals.” Id. (Emphasis added).

Unfortunately, the stigma surrounding HIV and AIDS is one of the biggest

barriers medical professionals face in HIV treatment and prevention. Perone at 399

citing Gregory M. Herek, Illness, Stigma, and AIDS, Psychol. Aspects of Serious

IlIness: Chronic Conditions, Fatal Diseases, & Clinical Care 131 (Paul T. Costa, Jr.

& Gary R. VandenBos eds. 1990) (asserting that “[flears of harassment, job

discrimination, and loss of insurance coverage may deter [people at risk for HIV]

from being tested [or treated]”); Ronda B. Goldfein & Sarah R. Schalman-Bergen,

From the Streets of Philadelphia: The AIDS Law Project of Pennsylvania’s How-to

Primer on Mitigating Health Disparities, 82 Temp. L. Rev. 1205, 12138 (2010) (citing

studies showing that the existence of AIDS stigma creates a barrier for HIV testing

and treatment). “HIV criminalization laws only increase stigma, especially when

they have no connection to transmission.” Perone at 399. “Stigma continues to

plague the lives of people with HIV,” and “HIV criminalization laws reflect this

15

stigma toward HIV and a lack of awareness about HIV treatment.” Id. Notably,

Ohio Rev. Code Ann. § 2903.11 (B)(1) does not require transmission.

Ohio decided to treat marginalized individuals differently not because they

actually have a markedly different impact upon others, but because they are

perceived through animus and stigma to have a markedly different impact. See,

generally, Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 82, 96 S.Ct. 2440, 2458,

49 L.Ed.2d 310 (1976) (Powell, J., concurring). Ohio’s decision is not reasonable. It

is not narrowly tailored. It is not the least restrictive means of curbing the spread of

HIV. It is a broad-sweeping law that focuses entirely on one marginalized group of

individuals without any valid scientific or legal reason for doing so, and without

achieving any of its alleged “compelling” purposes.

III. The Ohio Supreme Court’s decision contravenes this Court’s precedent.

This Court’s decision in Riley, supra, is directly on point, and completely

contravened by the Ohio Supreme Court’s decision in this case. In Riley, as is

relevant here, the North Carolina Charitable Solicitations Act required professional

fundraisers to “disclose to potential donors the average percentage of gross receipts

actually turned over to charities by the fundraiser for all charitable solicitations

conducted in the State with in the previous 12 months.” Riley at 781. That statute is

directly parallel to Ohio Rev. Code Ann. § 2903.11(B).

Although the potential consequences of violating the laws are different, both

statutes require a person with a certain status (professional fundraiser or HIV-

positive) to disclose something (that status) to another person before engaging in

16

another act (solicitation for charitable donations or sexual conduct) with that

person. In Riley, this Court said:

Mandating speech that a speaker would not otherwise make necessarily

alters the content of the speech. We therefore consider the Act as a contentbased regulation of speech. Id. at 795.

This Court was also clear that it is not relevant that the speech involves “compelled

statements of ‘fact” rather than “compelled statements of opinion” because “either

form of compulsion burdens protected speech.” Id. at 797-798.

This Court has addressed the state’s interest in informed consent in another

context:

Although we do not wish to denigrate the State’s interest in full

disclosure, the danger the State posits 1s not as great as might initially

appear.

Donors are also undoubtedly aware that solicitations incur costs, to

which part of their donation might apply. And, of course, a donor is

free to inquire how much of the contribution will be turned over to the

charity. Under another North Carolina statute, also unchallenged,

fundraisers must disclose this information upon request. N.C.Gen.Stat.

§ 1381C—16 (1986). Even were that not so, if the solicitor refuses to give

the requested information, the potential donor may (and probably

would) refuse to donate.

Moreover, the compelled disclosure will almost certainly hamper the

legitimate efforts of professional fundraisers to raise money for the

charities they represent. First, this provision necessarily discriminates

against small or unpopular charities, which must usually rely on

professional fundraisers. Campaigns with high costs and expenses

carried out by professional fundraisers must make unfavorable

disclosures, with the predictable result that such solicitations will

prove unsuccessful. Yet the identical solicitation with its high costs

and expenses, if carried out by the employees of a charity or

volunteers, results in no compelled disclosure, and therefore greater

success. Second, in the context of a verbal solicitation, if the potential

17

donor is unhappy with the disclosed percentage, the fundraiser will not

likely be given a chance to explain the figure; the disclosure will be the

last words spoken as the donor closes the door or hangs up the phone.

Again, the predictable result is that professional fundraisers will be

encouraged to quit the State or refrain from engaging in solicitations

that result in an unfavorable disclosure. Id. at 799-800.

The analytical parallels between this case and Riley are uncanny. As pure as

the state’s interests may be, there is no exception in First Amendment

jurisprudence for extra-compelling governmental interests. Once the state has

established its compelling interest, the question becomes whether the statute is the

least restrictive, narrowly tailored means of achieving that interest. Here, a

potential sexual partner is free to, and should, inquire about a potential sexual

partner’s HIV status, in addition to any other disease information they want to

know before engaging in sexual conduct. If the potential sexual partner does not

disclose his or her status to the other potential sexual partner, then the person who

requested the information may (and probably would) refuse to engage in sexual

conduct. A paternalistic statute requiring disclosure is more restrictive of speech

than a statute that forbids purposeful or reckless disclosure to the disease; a statute

that requires actual transmission of the disease; or even a statute with lesser

punishments such as civil remedies.

Additionally, this statute will almost certainly hamper the legitimate efforts

of HIV-positive individuals to lead normal lives in Ohio. The law necessarily

discriminates against historically marginalized Ohioans, including HIV-positive

homosexuals, African-Americans, drug users, and even hemophiliacs, who continue

to be subjected to outdated HIV/AIDS stigma. Perone at 370, citing Treichler at 44.

18

As a result of this stigma, compelled disclosure will likely “be the last words spoken

as the [potential sexual partner] closes the door or hangs up the phone.” Riley at

800. These historically marginalized groups have no recourse under the law — it is

irrelevant if they are undergoing treatment to the point of not being communicable;

it does not matter if they use protection; it is irrelevant if the sexual act engaged in

carries no risk of transmission; and it 1s of no consequence if there was no exposure,

let alone transmission. The predictable result will be that HIV-positive individuals

will leave Ohio, or refrain from engaging in normal lives. The law further

marginalizes historically marginalized Ohioans without achieving any of its

purported goals.

IV. This Case is an ideal vehicle for settling the correct standard of review

for determining the constitutionality of statutes compelling disclosure of

one’s HIV status prior to engaging in sexual conduct.

The question presented in this case is completely preserved for decision by

this Court, making this case an ideal vehicle for settling the correct standard of

review to be applied when determining whether statutes that compel disclosure of

one’s HIV status prior to engaging in sexual conduct are constitutional. Three

justices joined a thorough concurring opinion that disagreed completely with the

majority on the appropriate standard of review in this case. Although five states,

including Ohio, have considered the constitutionality of similar statutes, no

concurrence has been reached regarding the appropriate standard of review.

The constitutionality of Ohio Rev. Code Ann. § 2903.11(B) has been the

central focus of this case since its inception, and the question presented has been

19

addressed and squarely decided below. Briefing was significant by both parties,

including voluminous briefing from amici on both sides. There are no procedural or

jurisdictional obstacles that would prevent this Court from reaching the merits of

this case.

This case raises a critical question for the future of the First and Fourteenth

Amendments. Ohio’s felonious assault statute, and statutes like it in other states’,

are being analyzed as though their impact on speech is incidental, when it is plain

the impact is direct. The First Amendment is being degraded because of a

misinformed perception that disclosing one’s HIV-positive status is an

overwhelmingly compelling reason to mandate speech, with no regard for whether

the law is narrowly tailored. In turn, because the standard of review has been

reduced for the First Amendment, the impact it has on the fundamental free-speech

right 1s being ignored for Equal Protection analysis. As a result, historically

marginalized groups are being further marginalized under a less-restrictive

standard of review.

This Court should grant Mr. Batista’s writ and make clear that when a

statute compels speech, it must be subjected to strict-scrutiny analysis, no matter

how compelling the government’s interest in the law is perceived to be. In doing so,

this Court would also make clear that compelled speech cannot be used to further

® See The Center for HIV Law and Policy, Sourcebook on State and Federal HIV Criminal Law and

Practice (2017) (accessed March 23, 2018), https://www.hivlawandpolicy.org/sourcebook

20

marginalize already marginalized groups through the use of an unjustifiably

lowered standard of review for Equal Protection analysis.

Conclusion

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

Law Office of the Hamilton County

Public Defender

/s/ Joshua A. Thompson

Joshua A. Thompson (#302596)*

Raymond T. Faller

Demetra Stamatakos

Law Office of the Hamilton County

Public Defender

230 E. 9th St., Second Floor

Cincinnati, OH 45202

(513) 946-3863

jathompson@cms.hamilton-co.org

Counsel for Petitioner Orlando Batista

*Counsel of Record

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