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The First Amendment—and sexual relations?

The Ohio Supreme Court recently rendered a decision that concerns First Amendment rights in an unusual setting—sexual relations. The case concerned a statute that prohibits someone who knows he has the HIV virus from engaging in sex without first disclosing that fact to the other person. It’s a felony to violate the statute.

Orlando Battista knew he had the HIV virus but did not tell the woman with whom he had engaged in sex. The woman later learned that Battista was HIV positive and went to the police. When interviewed by the police, Battista admitted he had the virus and failed to tell the woman. After being indicted, Battista asked the court to dismiss the indictment, arguing the statute violated his First Amendment rights.

The trial court denied Battista’s request and sentenced him to eight years in person. After his sentence was upheld in appeal, the Ohio Supreme Court agreed to hear the case. The Ohio Supreme Court held the statute did not regulate speech. Rather, the statute regulated conduct and imposed only an “incidental burden” on speech that does not violate the Constitution.

[State v. Batista, Slip Opinion No. 2017-Ohio-8304.]

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