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U.S. Restrictions on Global HIV Prevention Enjoined

U.S. District Judge Victor Marrero has ruled that a group of organizations that receive federal funding for international HIV prevention are entitled to a preliminary injunction against application of a statute requiring them to have “a policy explicitly opposing prostitution and sex trafficking.”

In his lengthy May 8 opinion, Marrero concluded that the plaintiffs were likely to prevail on their claim that the statute violates their First Amendment rights.

At issue in the case are provisions of the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, passed at President George W. Bush’s behest. Given testimony as congressional hearings that female prostitution is implicated in the spread of HIV in Asia and Africa, the legislation was shaped to forbid any funding to be used in a way that could be seen as condoning or promoting prostitution. Though the care of prostitutes living with HIV can be funded, no dollars can be used “to promote or advocate the legalization or practice of prostitution or sex trafficking ” and in most cases funds cannot go to “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”

In some nations, HIV prevention efforts involve enlisting prostitutes in reform efforts, and include attempts to reduce or eliminate criminal penalties in return for prostitution being regulated to meet safer-sex health standards.

Originally, the government interpreted the statute to restrict organizations receiving funds only in their activities paid for by such support, but after conservatives in Congress raised a stink, the Bush administration began to impose the restrictions on all activities of those receiving funding.

This provoked the lawsuit. The plaintiffs argued that the statute should be interpreted to allow them to take whatever positions or actions they like concerning prostitution so long as they do not use federal money for those efforts. They argued that the government was using the hook of federal money to require them to take a particular position on a hotly contested policy issue, a form of unconstitutional compelled speech. They sought an injunction to prevent application of the statute until their case was resolved, arguing that the regulations’ application is inflicting irreparable harm on international AIDS prevention.

The government argued that under its spending power Congress could place whatever restrictions it liked on its funding recipients, who had the choice not to seek federal money.

The legal issue is similar in some respects to that faced by the Supreme Court a few months ago when it decided Rumsfeld v. FAIR which upheld the requirement that universities receiving federal assistance allow military recruiters on campus. Marrero’s decision is among the first to cite Rumsfeld v. FAIR as a precedent although, ironically, in support of the plaintiffs’ position. Marrero decided that the government correctly interpreted the statute, but that the plaintiffs have the stronger constitutional argument. Distinguishing between this case and others in which government funding restrictions have been upheld, the judge found that the plaintiffs’ claims revolve around First Amendment rights involving political speech, and therefore they are entitled to a preliminary injunction barring the government restrictions.

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Texas Court Says HIV Still a Deadly Weapon

A sharply divided Texas appeals court ruled on May 12 that “HIV-positive seminal fluid” is a “deadly weapon” in the context of the criminal prosecution of a positive man who had unprotected oral and anal sex with another man. Although the court overturned a 97-year prison sentence due to errors in the trial court’s instructions to the jury, it upheld that judge’s instructions on the “deadly weapon” issue.

The opinion of Chief Justice Josh R. Morriss, III, for the Texarkana branch of the Court of Appeals, and the dissent by Justice Donald R. Ross fail to make clear the underlying fact of the case, but is appears that Earl Edward Mathonican, the convicted man, and J.M. may have had an ongoing sexual relationship prior to the December 2003 events at issue in the case, though that point was disputed at trial. J.M. claimed, on this occasion, to be inebriated to the point of being unable effectively to consent to sexual relations though that too was contested.

According to the grand jury indictment, Mathonican “did then and there intentionally and knowingly sexually assault [J.M.] by causing [J.M.’s] sexual organ to penetrate [the] anus of the said Earl Edward Mathonican, without [J.M.’s] consent, and the said Earl Edward Mathonican knew that the said [J.M.] was unconscious and/or physically unable to resist,” and that on the same occasion Mathonican and J.M. engaged in mutual oral sex.

That’s right—Mathonican is charged with forcing J.M. to top him.

The court ruling does not indicate how this incident came to the attention of the police, but presumably J.M. complained about it, because he testified against the defendant at the trial. J.M. has been tested and is not HIV-positive, so this case is entirely about non-consensual sex, not HIV transmission. The “deadly weapon” matter involves the minimum time that must be served by Mathonican.

The appeals court unanimously found that the trial judge gave jurors confusing instructions that misled them into thinking they could convict Mathonican even if they did not all agree on any one of the individual charges. But, a majority of the appellate panel, citing cases from the late 1980s through the mid-‘90s, found that HIV-positive seminal fluid is a “deadly weapon,” though there was no such expert medical testimony at the trial.

Justice Ross offered a spirited defense, noting that that the evidence that J.M. was even exposed to Mathonican’s seminal fluids in a way that could transmit HIV was inconclusive, and that given the evolution of scientific knowledge about transmission and treatment the conclusions from the old cases are not necessarily still valid.

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Updated 5:17 pm, July 20, 2018
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