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Iowa HIV Law Not Vague or Overbroad, Says Eighth Circuit

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By Aditi Mukherji, JD on June 25, 2013 4:01 PM

The Eighth Circuit Court of Appeals ruled that Iowa’s HIV law was not unconstitutionally vague as to Adam Musser, who was convicted of knowingly transmitting the HIV virus to four women.

Musser was convicted in four separate trials of criminally transmitting HIV in violation of Iowa Code § 709C.1. The Eighth Circuit Court of Appeals set out to determine whether the statute violated the due process clause because it was vague and overbroad.

Iowa's Law Against Spreading HIV

Under Iowa Code § 709C.1, "a person commits criminal transmission of [HIV] if the person, knowing that the person's [HIV] status is positive ... [e]ngages in intimate contact with another person."

The statute defines "intimate contact" as "the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of [HIV]."

Issues

Musser claims that the Iowa statute doesn't provide fair notice of what acts are prohibited because the phrases "intimate contact" and "in a manner that could result in the transmission of [HIV]" are vague and sweep too broadly.

For purposes of this appeal, Musser didn't dispute the facts underlying his convictions -- he admitted to having unprotected sex with four women when he knew he was HIV-positive and without informing the women of his condition.

Vagueness

Musser argues that the vague statute unconstitutionally prohibits certain activities -- e.g., accidentally bleeding on another individual after an automobile accident or during a sporting competition, kissing, and breast-feeding -- because "all the state needs to do is find an expert to say that such contact 'could' transmit [HIV]."

But the court wasn't buying his hypotheticals. It focused on his case. He slept with four women when he knew he was HIV-positive and didn't tell them about it. He wasn't in a car accident or a sporting competition. He was definitely not breast-feeding.

To the contrary, the court held his "intimate contact" was anything but vague. Because Musser knew his HIV status to be "positive" and engaged in the type of "intimate contact" that the statute was plainly intended to prohibit, the court ruled the statute is not unconstitutionally vague as applied to him.

Remember, the court won't consider void-for-vagueness challenges based on hypothetical situations that aren't directly applicable to the plaintiff.

Overbreadth

In his overbreadth challenge, Musser was "targeting the right of two persons to engage in private, intimate contact." Unfortunately for Musser, that right is recognized under the substantive component of the Due Process Clause.

The overbreadth doctrine is concerned with facial challenges to laws under the First Amendment, not substantive Due Process. His argument needed to demonstrate how the statute would compromise his recognized First Amendment protections.

Since Musser didn't raise any First Amendment concerns, he was precluded from asserting an overbreadth challenge to the statute.

The takeaway point here is that attorneys who want to assert an overbreadth challenge need to remember that the doctrine is restricted in its application, and is "not recognized...outside the limited context of the First Amendment."

Accordingly, the Eighth Circuit affirmed the lower court.

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