Free Speech No Defense To HIV Sex Assault, Ohio Court Says

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By Jordan S. Rubin

Freedom of speech can’t save Orlando Batista from his decision to have sex with his then-girlfriend without telling her he had HIV, the Supreme Court of Ohio held Oct. 26 ( State v. Batista , Ohio, No. 2016-0903, 10/26/17 ).

In a case of first impression in the state, its top court said the law Batista was convicted under doesn’t violate the First Amendment or the federal or state Equal Protection Clauses.

Batista tested positive for the virus that causes AIDS when he was incarcerated on an unrelated charge in 2001. He had sex with the victim in 2013 but failed to inform her of his status.

The sex assault law regulates conduct, not speech, so it doesn’t violate the First Amendment, the court said in an opinion by Justice Terrence O’Donnell that affirmed Batista’s conviction and eight-year prison sentence.

The law is also “rationally related” to the state’s “legitimate interest” in preventing the spread of HIV, so it doesn’t violate the equal protection clauses of the federal of state constitutions either, the court said.

Any restrictions on speech are “incidental,” the court said in rejecting Batista’s free speech argument.

Rejecting his argument that the law violates equal protection for focusing on HIV-infected people and sex rather than, say, those with Hepatitis C or those who transmit HIV other ways, the court said the law’s focus is rational despite medical advances in treating the virus.

Chief Justice Maureen O’Connor, Justice William M. O’Neill, and Judge Thomas R. Wright, sitting by designation from Ohio’s Eleventh Appellate District, joined the opinion.

Justice R. Patrick DeWine wrote a concurring opinion, joined by Justices Sharon L. Kennedy and Judith L. French. Batista’s constitutional claims implicate weightier protection than the majority recognizes, DeWine said. But the majority’s conclusion is still correct because, even under stricter constitutional scrutiny, the law still survives, he said.

Hamilton County Public Defender, Cincinnati, represented Batista. Hamilton County Prosecuting Office, Cincinnati, represented the state.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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