Monday, J uly 1 5, 2 013 4 :15:29 P M Eastern Daylight Time Subject: RE: Query from reporter in NY Date: Friday, February 22, 2013 5:05:21 PM Eastern Standard Time From: To: Vander Sanden, Jerry Sergio Hernandez Frankly, I was astonished by tenor of some of your questions but I will respond anyway: 1. What's the difference between lying or failing to disclose one's HIV status? In my view, there is no practical difference between a deliberate and intentional failure of one to disclose their positive HIV (or any other infectious disease) status to another or lying about it. Either way, the person with the infectious disease is making a conscious effort to conceal vital information that is critically important to the other person placed at risk. 2. Everyone has a certain degree of personal responsibility to protect themselves in a relationship but shifting the burden of HIV disclosure from the infected person, who is aware of a known danger, to one who is completely unaware of their partner's condition smacks of a "blame the victim" sort of mentality. It would be like telling a rape victim that they should have been more careful. 3. As far as "being on the hook" for one's own health and safety, I think it makes more sense to place the responsibility and duty on the person who has knowledge of their own contagious condition to take affirmative steps to prevent the spread of their affliction to other unsuspecting persons. What is the compelling argument for keeping such a condition a secret from an unsuspecting intimate partner? 4. The proposed legislation in Iowa amending the HIV statute would force the victim to prove they were not infected before their contact with the suspect. I believe this is an unrealistic burden and unworkable proposal since most people do not have themselves tested for an infectious disease unless they are showing symptoms. 5. The degree of precaution one should take before a sexual encounter is subjective, but when a person knows they are carrying an infectious, incurable and possibly deadly disease, I believe they have a moral and legal responsibility to disclose that status to another with whom they intend to have intimate relations. Not everyone is properly educated about sexual health and HIV transmission risks. For instance, some believe that condoms never fail. 6. I think it is the height of narcissism for a person with an infectious disease to be so wrapped up in their own personal feelings about their status that they don't disclose their condition to an unsuspecting partner. Let's be honest here; some are more concerned with their own desire for sexual gratification and they have little regard for the health of the person they are putting at risk. If someone else had been more respectful and considerate (and honest) with them, they might not have the disease in the first place. Finally, just for the record, I don't believe the "law enforcement perspective" on this issue is any different than the perspective of the average person on the street. Jerry A. Vander Sanden Linn County Attorney Linn County Courthouse Cedar Rapids, IA 52403 (319) 892-6350 Page 1 of 4 jerry.vandersanden@linncounty.org From: Sergio Hernandez [mailto:Sergio.Hernandez@propublica.org] Sent: Friday, February 22, 2013 11:01 AM To: Vander Sanden, Jerry Subject: [Is likely SPAM] Query from reporter in NY Importance: Low Hi Jerry, My name is Sergio Hernandez, I'm a reporter for a news organization in New York called ProPublica. I'm working on an article about HIV-specific criminal prosecutions, and I was wondering if you might be willing to answer some questions I had about the e-mail (below) that you sent to the Iowa County Attorneys Association: 1. Did Mr. Lord lie to the complainants about his HIV status or did he simply fail to disclose his HIV status to them? 2. What is your response to the position of some HIV advocates, who say the victims in these sexual conduct cases have a personal responsibility of their own to protect themselves (e.g., by insisting on condoms, or abstaining from sex with partners whose health status are unknown or unverified)? 3. What is your response to the argument that prosecuting the HIV-positive partner in these situations lets the HIV-negative partner "off the hook" for monitoring their own health/safety? 4. You ask "Who seeks a test of this nature unless they suspect they're infected?" Can you expand a little on that? The victims in the case you mentioned all appear to be gay men, a group among whom HIV infection is disproportionately high. (Other groups in the U.S. include blacks and Latinos.) HIV testing is also mandatory for prisoners in many states, and public health officials have long campaigned for routine HIV testing among highly vulnerable groups. Some authorities--including the U.S. Preventive Services Task Force--even recommend routine HIV testing for all adults. 5. You also ask, "How can you give knowing consent when you are not made aware of the risks?" Some would argue that anyone who is properly educated about sexual health and HIV transmission would be "aware of the risks" and should take "worst case scenario" precautions with each sexual partner whose health status is unknown or unverified. 6. Finally, you ask "what is so onerous or unjust about expecting full disclosure from someone with a contagious or infectious disease." A common argument among advocates is that HIV infection is a severely stigmatized condition, and that there are many reasons a person with HIV might not disclose their status (fear of rejection, discrimination, harassment, or abuse; fear of prosecution; loss of income if their livelihood depends on the sex industry; etc), especially when the chance of transmission is very slim (uses prophylactics, on medication, undetectable viral load, etc). Can you tell me what your take is on that? Please feel free to contact me if you have any questions. I've been working on this story for several months now and am very interested in learning more about the law enforcement perspective on this issue, so I'm very much looking forward to your response. Page 2 of 4 Best regards, -Sergio Hernandez ? Reporter, ProPublica ?One Exchange Plaza ?55 Broadway, 23 Fl ?New York, NY 10006 ??desk 917.512.0257? mobile 646.580.2755? fax 212.785.2634? twitter @cerealcommas ??propublica.org | @propublica | fb.com/propublica From: Vander Sanden, Jerry [mailto:Jerry.VanderSanden@linncounty.org] Sent: Sunday, February 03, 2013 2:12 PM To: 'Ritchie, Corwin [AG]'; Apple, Susan [AG]; CAO-Audubon-Andersen; Ferguson, Tom; CAO-Carroll ; CAO-Hancock; CAO-Jasper-Jacobsen ; CAO-Jefferson-Dille; CAO-Johnson; CAO-Kossuth; CAO-Marshall; CAO-Mills; CAO-Muscatine-Ostergren; CAO-Plymouth; CAO-Polk-Sarcone ; CAO-Pottawattamie; CAO-Poweshiek; CAOSioux; CAO-Winnebago Subject: RE: Please Review: Repeal and replace 709c The proposed amendments to Chapter 709C would render the law in this area completely useless and ineffective. It would be virtually impossible, under most any circumstances, to prove that a person with a contagious or infectious disease intended to infect another with the disease. What self-respecting person would ever admit to harboring such an atrocious purpose? Where the potential for harm is so severe, whether it is the risk of exposing another to an incurable or terminal disease through sexual contact or infection of the blood supply, the focus should be on how to eliminate the risk of transmitting disease. This concept starts and ends with personal responsibility. I did prosecute a case under the current statute. The defendant was a 36 year old man, Kim Lord, who knew he was HIV positive and had been taking medication for the disease for over ten years. Yet, he engaged in sexual relations with three teenage males without telling any of them about his HIV status. His defense was that he didn't intend to infect them and that he used a condom. The victims didn't know whether a condom was used or not but would not have engaged in intimate activity if they had known the defendant was HIV positive. Our medical director of public health testified that condoms do not eliminate the risk that the HIV virus could be spread. There is no way for an HIV-infected person to have sex that doesn't involve risk of transmission. In addition, for one who has been exposed to the virus, there is no immediate way to determine whether they have become infected. The HIV virus has an incubation period of about six months. To those three victims and their families, it was an agonizing and distressing wait to see whether they had become infected. Luckily they had not, but it could have been easily prevented if the defendant had disclosed his HIV status which would have been the simple and responsible thing to Page 3 of 4 had disclosed his HIV status which would have been the simple and responsible thing to do. However, the defendant placed more of a value on his own sexual gratification than he did for health and welfare of the victims. Under the proposed amendment, we would have had to prove the victims were all uninfected at the time of the offense which would be impossible to prove. Who seeks a test of this nature unless they suspect they're infected? If they had become infected, we would not have known for about six months and then we'd be put in the position of having to prove the defendant's earlier conduct (to the exclusion of all others) resulted in the transmission of the disease. The current statute makes it a complete defense when knowing consent is given by the person being exposed to the risk. How can you give knowing consent when you are not made aware of the risks? What is so onerous or unjust about expecting full disclosure from someone with a contagious or infectious disease? It is the responsible thing to do. This not a statute that needs to be amended. Jerry A. Vander Sanden Linn County Attorney Linn County Courthouse Cedar Rapids, IA 52403 (319) 892-6350 Page 4 of 4