In October 2017, the Supreme Court of Ohio in the case of State of Ohio v. (Orlando) Batista (2017), 151 Ohio St.3d 584, 2017-Ohio-8304, held that because ORC Section 2903.11(B)(1) — criminal felonious assault — regulates conduct, not speech, it does not violate the First Amendment to the United States Constitution, and it is rationally related to the State’s legitimate interest in preventing the transmission of the human immunodeficiency virus (HIV) to sexual partners who may not be aware of the risk and, therefore, does not violate the Equal Protection Clauses of either the United States or Ohio Constitutions.
Defendant Batista maintained that ORC 2903.11(B)(1), which prohibits those persons with knowledge of their HIV status from engaging in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct was a content based regulation that compels speech in violation of the First Amendment to the United States Constitution. Batista also contended that the statute violated the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution because there was no rational basis for a distinction between HIV positive individuals and individuals with other infectious diseases, such as Hepatitis C or between the methods of transmitting HIV.
The State of Ohio argued that the felonious assault statute prohibits only uninformed sexual conduct and any effect this prohibition has on speech is incidental. The State further argued that the statute is narrowly tailored to that interest (preventing spread of HIV) because it neither prohibits an infected person from having sexual relations with another, nor compels public disclosure of a person’s HIV positive status.
Ultimately, the Supreme Court of Ohio held that although ORC 2903.11(B)(1) requires those who know they are HIV positive to disclose their status if they choose to engage in sexual conduct with another person, that the disclosure is incidental to the statute’s regulation of the targeted conduct. Thus, the statute regulates conduct, not speech, and therefore does not violate the First Amendment right to free speech.
The Court also held that the federal Equal Protection Clause does not forbid classification, but it requires that different treatment be related to the purpose of the law and because there is some conceivable basis to support the legislative arrangement, the statute does not violate equal protection. The Court further stated, “we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational.”