[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Batista, Slip Opinion No. 2017-Ohio-8304.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2017-OHIO-8304
             THE STATE OF OHIO, APPELLEE, v. BATISTA, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Batista, Slip Opinion No. 2017-Ohio-8304.]
Criminal law—R.C. 2903.11(B)(1)—Because R.C. 2903.11(B)(1) 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 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.
     (No. 2016-0903—Submitted May 17, 2017—Decided October 26, 2017.)
               APPEAL from the Court of Appeals for Hamilton County,
                            No. C-1500341, 2016-Ohio-2848.
                                     _______________
                                SYLLABUS OF THE COURT
Because R.C. 2903.11(B)(1) regulates conduct, not speech, it does not violate the
        First Amendment to the United States Constitution, and it is rationally
                             SUPREME COURT OF OHIO




       related to the state’s legitimate interest in preventing the transmission of the
       human immunodeficiency virus 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.
                                 _______________
       O’DONNELL, J.
       {¶ 1} Orlando Batista appeals from a judgment of the First District Court of
Appeals that affirmed his felonious assault conviction for knowingly engaging in
sexual conduct with his girlfriend, R.S., without disclosing to her that he had tested
positive as a carrier of the human immunodeficiency virus (“HIV”).
       {¶ 2} Batista maintains that R.C. 2903.11(B)(1), which prohibits those
persons with knowledge of their HIV status from “engag[ing] in sexual conduct
with another person without disclosing that knowledge to the other person prior to
engaging in the sexual conduct,” is a content based regulation that compels speech
in violation of the First Amendment to the United States Constitution. He also
contends that this statute violates the Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution and Article I, Section 2 of the Ohio
Constitution because there is 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.
       {¶ 3} Because R.C. 2903.11(B)(1) 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 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.
Accordingly, we affirm the judgment of the court of appeals.




                                          2
                               January Term, 2017




                          Facts and Procedural History
       {¶ 4} In October 2001, while Orlando Batista was incarcerated on an
unrelated charge, the Department of Rehabilitation and Correction tested him for
HIV and informed him that he tested positive for the disease.
       {¶ 5} After his release on that charge, in November 2013, Batista began an
intimate relationship with R.S. and knowingly engaged in intercourse with her
without disclosing his HIV positive status to her prior to engaging in that conduct.
       {¶ 6} Two months later, she learned of his HIV positive status from his ex-
sister-in-law. When she confronted him, he acknowledged he had tested positive,
and he told her he had been infected when he was a teenager. During a subsequent
interview with the police, he admitted to having had intercourse with her without
telling her he was HIV positive.
       {¶ 7} A grand jury indicted him for felonious assault in violation of R.C.
2903.11(B)(1), which makes it a crime for a person who has tested positive for HIV
to knowingly engage in sexual conduct with another without disclosing that
information prior to engaging in the sexual conduct. Batista moved to dismiss the
indictment, arguing that the statute violates the First Amendment right to free
speech and the Equal Protection Clauses of the United States and Ohio
Constitutions.
       {¶ 8} The trial court conducted a hearing on the motion, and Batista
presented the testimony of Dr. Judith Feinberg, a faculty member at the University
of Cincinnati College of Medicine with a specialty in infectious diseases and a
subspecialty in HIV disease. Feinberg testified that the lifetime survival rate of
those diagnosed with HIV who receive treatment is now comparable to the survival
rate of people who do not have HIV. She also acknowledged, however, that while
there are ways to treat HIV, there is no cure. She compared HIV to Hepatitis C,
noting that there are medicines that can cure Hepatitis C, and acknowledged that
although there is increasing recognition that Hepatitis C can spread through sexual




                                         3
                             SUPREME COURT OF OHIO




transmission, the most common way to spread it is through needles because the
amount of Hepatitis C in blood is high compared to amounts in other bodily fluids.
At the conclusion of the hearing, the court denied Batista’s motion.
       {¶ 9} Batista subsequently pleaded no contest to felonious assault, and the
trial court found him guilty and sentenced him to eight years in prison.
       {¶ 10} The First District Court of Appeals affirmed that conviction and
concluded that the statute does not violate the First Amendment. The court
reasoned that the statute is a content based law subject to strict scrutiny, that the
state has a compelling interest in stopping the transmission of HIV through sexual
conduct, and that the statute is narrowly tailored to serve that interest because it
requires disclosure only to potential sexual partners. 2016-Ohio-2848, 64 N.E.3d
498, ¶ 9-12. It also held that R.C. 2903.11(B)(1) does not violate the Equal
Protection Clauses of the United States and Ohio Constitutions because the state
has a legitimate interest in stopping the spread of HIV and because there is a rational
relationship between the state’s interest and requiring disclosure of a positive HIV
status before engaging in sexual conduct. Id. at ¶ 6.
       {¶ 11} We accepted Batista’s discretionary appeal.
       {¶ 12} On appeal to this court, he argues that R.C. 2903.11(B) is subject to
strict scrutiny review for the First Amendment and Equal Protection claims because
the statute compels content based speech and implicates a fundamental right. He
acknowledges that the state has a compelling interest in reducing or stopping the
spread of HIV and other infectious diseases, but he argues that the statute fails under
strict scrutiny review because it is not narrowly tailored to further a compelling
government interest: it does not prevent the spread of HIV, it compels speech even
when the sexual conduct or bodily fluids cannot transmit HIV, and its existence is
not necessary to prosecute HIV positive individuals for exposing people to HIV.
       {¶ 13} Batista further maintains that even if the statute does not compel
content based speech, it violates equal protection because there is no rational basis




                                          4
                                 January Term, 2017




for a distinction between HIV positive individuals and those individuals with other
infectious diseases such as Hepatitis C. He contends that both HIV and Hepatitis
C can be transmitted sexually and by sharing needles, that there is no vaccine for
either disease, and that both diseases can shorten the lifespan of the infected person.
Batista maintains that by singling out HIV but no other infectious disease, the
statute is motivated by an outdated stigma that surrounds the virus. He also argues
that the statute discourages people from getting tested for HIV and that it does not
prevent the spread of HIV. Lastly, he asserts that there is no rational basis for a
distinction between the methods of transmission of HIV.
       {¶ 14} The state argues that the statute prohibits only uninformed sexual
conduct and any effect this prohibition has on speech is incidental. Alternatively,
it argues that even if R.C. 2903.11(B)(1) compels speech, the statute withstands
strict scrutiny review on the First Amendment and Equal Protection claims. The
state claims that it has a compelling interest in ensuring informed consent and in
limiting the spread of HIV by means of sexual conduct and that the statute is
narrowly tailored to that interest because it neither prohibits an infected person from
having sexual relations with another nor compels public disclosure of a person’s
HIV positive status.
                                        Issues
       {¶ 15} We are called upon to consider whether this statute violates the First
Amendment right of free speech or the Equal Protection Clauses of the United
States and Ohio Constitutions.
                                 Law and Analysis
       {¶ 16} R.C. 2903.11(B)(1) states: “No person, with knowledge that the
person has tested positive as a carrier of a virus that causes acquired
immunodeficiency syndrome, shall knowingly * * * [e]ngage in sexual conduct
with another person without disclosing that knowledge to the other person prior to
engaging in the sexual conduct.”




                                          5
                             SUPREME COURT OF OHIO




                                 First Amendment
       {¶ 17} The First Amendment does not prevent statutes regulating conduct
from imposing incidental burdens on speech. Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U.S. 47, 62, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006),
quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93
L.Ed. 834 (1949) (“ ‘it has never been deemed an abridgment of freedom of speech
or press to make a course of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language, either spoken, written, or
printed’ ”); Sorrell v. IMS Health, Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180
L.Ed.2d 544 (2011) (“the First Amendment does not prevent restrictions directed
at * * * conduct from imposing incidental burdens on speech”).
       {¶ 18} This case presents an issue of first impression in this state. However,
two state supreme courts have held that statutes similar to R.C. 2903.11(B)(1) did
not regulate speech and therefore did not violate the First Amendment.
       {¶ 19} In State v. S.F., 483 S.W.3d 385 (Mo.2016), where a Missouri statute
made it “unlawful for any individual knowingly infected with HIV to * * * [a]ct in
a reckless manner by exposing another person to HIV without the knowledge and
consent of that person to be exposed * * * [t]hrough contact with blood, semen or
vaginal secretions in the course of oral, anal or vaginal sexual intercourse,”
Mo.Rev.Stat. 191.677.1(2)(a), the Missouri Supreme Court concluded that the
statute “regulates conduct, not speech,” and because it “imposes only incidental
burdens on speech, it does not violate the freedom of speech protections of the
federal or state constitutions,” S.F. at 387-388. The court further stated that “the
statute seeks to prevent certain conduct that could spread HIV to unknowing or
nonconsenting individuals. While individuals may have to disclose their HIV status
if they choose to engage in activities covered by the statute, any speech compelled
by [the statute] is incidental to its regulation of the targeted conduct and does not
constitute a freedom of speech violation.” (Footnote omitted.) Id.




                                         6
                                January Term, 2017




       {¶ 20} And in People v. Russell, 158 Ill.2d 23, 630 N.E.2d 794 (1994),
where Caretha Russell, who knew she was infected with HIV, engaged in sexual
intercourse with Daren Smith without telling Smith of her infection and the state
subsequently charged her with violating a statute that made it a crime for a knowing
carrier of the HIV virus to transmit the virus to another person through intimate
conduct, the Supreme Court of Illinois held that the statute did not have “the
slightest connection with free speech.” Id. at 26. See former 720 Ill.Comp.Stat.
12-16.2(A), 1989 Ill.Legis.Serv. P.A. 86-897 (“A person commits criminal
transmission of HIV when he or she, knowing that he or she is infected with HIV:
(1) engages in intimate contact with another. * * * (D) It shall be an affirmative
defense that the person exposed knew that the infected person was infected with
HIV, knew that the action could result in infection with HIV, and consented to the
action with that knowledge”).
       {¶ 21} Like the statutes at issue in S.F. and Russell, R.C. 2903.11(B)(1)
prohibits HIV positive individuals from engaging in sexual conduct without
disclosing the HIV status prior to engaging in the conduct.          Although R.C.
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, the disclosure
is incidental to the statute’s regulation of the targeted conduct. Thus, this statute
regulates conduct, not speech, and therefore does not violate the First Amendment
right to free speech.
                                 Equal Protection
       {¶ 22} In State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930
N.E.2d 770, ¶ 39, this court held that “a statute that does not implicate a
fundamental right or a suspect classification does not violate equal-protection
principles if it is rationally related to a legitimate government interest.” Under
rational basis analysis, a classification “ ‘must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that could provide a




                                         7
                              SUPREME COURT OF OHIO




rational basis for the classification.’ ” Am. Assn. of Univ. Professors, Cent. State
Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999),
quoting Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S.
307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). “[A] legislative choice is not
subject to courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data.” Beach Communications at 315.
        {¶ 23} The federal Equal Protection Clause does not forbid classification,
but it requires that different treatment be related to the purpose of the law. See State
v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 24 (plurality
opinion). Here, the classification is individuals with knowledge of their HIV-
positive status who fail to disclose that status to someone prior to engaging in sexual
conduct with that person. The valid state interest is curbing HIV transmission to
sexual partners who may not be aware of the risk. The statute’s treatment of
individuals with knowledge of their HIV-positive status who fail to disclose that
status to a sexual partner furthers the state interest here.
        {¶ 24} Batista asks the court to weigh the wisdom of the legislature’s policy
choices, but that is beyond our authority. Because there is some conceivable basis
to support the legislative arrangement, the statute does not violate equal protection.
Batista’s argument that no rational basis exists to require only HIV-positive
individuals to disclose their status while not requiring the same of individuals with
Hepatitis C, for example, is misplaced. We are not faced with a statute that requires
individuals to disclose their Hepatitis C diagnosis or other contagious infection.
We leave that policy decision to the General Assembly. And the existence of other
sexually transmitted diseases that may have serious public health and safety
consequences does not eliminate the rational relationship between the classification
here—individuals with knowledge of their HIV-positive status who fail to disclose
that status to sexual partners—and the goal of curbing HIV transmission.




                                           8
                                 January Term, 2017




        {¶ 25} There is also a rational basis for the statute’s focus on a specific type
of HIV transmission; specifically, sexual conduct rather than transmission by other
methods, such as blood or needles. Sexual conduct remains one of the methods by
which HIV is transmitted. Simply because there are other methods of HIV
transmission does not render the classification here without a rational basis.
        {¶ 26} We recognize that there have been advancements in the treatment of
individuals with HIV that may have reduced the transmission and mortality rates
associated with the disease. However, 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. See Nordlinger v. Hahn, 505
U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992); Pickaway Cty. Skilled Gaming,
L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 19-20.
        {¶ 27} Thus, Batista’s position that R.C. 2903.11(B)(1) is not rationally
related to the state’s legitimate interest in preventing the transmission of HIV to
sexual partners who may not be aware of the risk is not well taken, and the statute
does not violate the right to equal protection under either the United States or Ohio
Constitutions.
                                     Conclusion
        {¶ 28} R.C. 2903.11(B) does not violate the First Amendment right to
freedom of speech because it regulates conduct and any speech compelled by the
statute is incidental to the regulated conduct. The statute also does not violate the
Equal Protection Clauses of the United States or Ohio Constitutions because it is
rationally related to the state’s legitimate interest in preventing the transmission of
HIV to sexual partners who may not be aware of the risk. We therefore affirm the
judgment of the court of appeals.
                                                                   Judgment affirmed.
        O’CONNOR, C.J., and O’NEILL and WRIGHT, JJ., concur.
        DEWINE, J., concurs, with an opinion joined by KENNEDY and FRENCH, JJ.




                                           9
                                   SUPREME COURT OF OHIO




         THOMAS R. WRIGHT, J., of the Eleventh Appellate District, sitting for
FISCHER, J.
                                     _________________
         DEWINE, J., concurring.
         {¶ 29} I agree with the majority that R.C. 2903.11(B)(1) does not violate
the First Amendment to the United States Constitution or the Equal Protection
Clauses of the United States or Ohio Constitutions. I write separately because I get
there by a different path.
         {¶ 30} In the majority’s view, the First Amendment is not implicated
because the “statute regulates conduct, not speech.” Majority opinion at syllabus.
I disagree. The statute plainly regulates both conduct and speech: one who tests
positive for the human immunodeficiency virus (“HIV”) must tell his partner that
he is HIV positive before engaging in sex. When the government tells someone
what he must say, it is regulating speech. Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006);
Riley v. Natl. Fedn. of the Blind of North Carolina, Inc., 487 U.S. 781, 795, 108
S.Ct. 2667, 101 L.Ed.2d 669 (1988).
         {¶ 31} Having determined that the statute implicates the First Amendment,
the next question is the proper test to determine the statute’s constitutionality.
Citing United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 67 (1968),
the state suggests that we should apply intermediate scrutiny because the statute
combines speech and nonspeech elements.1 The United States Supreme Court,
however, has limited the application of O’Brien to content-neutral restrictions on
speech. See Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d
265 (2000); Ward v. Rock Against Racism, 491 U.S. 781, 798-799, 109 S.Ct. 2746,

1
  To be clear, the Hamilton County Prosecutor’s Office, which represents the appellee, the state of
Ohio, argues for intermediate scrutiny. Amicus curiae, the Ohio Attorney General, argues that the
statute does not involve speech, but if the court concludes otherwise, the statute passes muster under
strict-scrutiny analysis.




                                                 10
                                January Term, 2017




105 L.Ed.2d 661 (1989). And the Supreme Court has determined that all compelled
speech is content based, a conclusion that would suggest that O’Brien is
inapplicable here. Riley at 795. Nevertheless, I find it unnecessary to consider
whether intermediate scrutiny might be appropriate because I am convinced that
R.C. 2903.11(B)(1) passes muster even under the more rigorous strict-scrutiny test.
       {¶ 32} Under strict scrutiny, a content-based regulation of speech will be
upheld only if it is narrowly tailored to achieve a compelling governmental interest
and it is the least restrictive means of doing so. Painesville Bldg. Dept. v. Dworken
& Bernstein Co., L.P.A., 89 Ohio St.3d 564, 567, 733 N.E.2d 1152 (2000), citing
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct.
1878, 146 L.Ed.2d 865 (2000). Here, the government has two interests at stake.
First, the government has an interest in limiting the spread of the HIV virus. Public
health is an important governmental concern. See, e.g., Mussivand v. David, 45
Ohio St.3d 314, 318-319, 544 N.E.2d 265 (1989). Second, the government has an
interest in ensuring informed consent to sexual relations. Our society has long
criminalized nonconsensual sexual relations. See R.C. 2907.02(A)(1)(b) and (c);
R.C. 2907.03(A)(2) and (3); R.C. 2907.04(A); R.C. 2907.05(A)(2), (3), (4), and
(5). The government’s insistence that an HIV-positive individual inform his partner
of his HIV status is perfectly consistent with this long-protected interest.
       {¶ 33} In challenging the statute, the appellant, Orlando Batista, points out
that remarkable strides have been made in the treatment of acquired immune
deficiency syndrome (“AIDS”). He notes that HIV-positive individuals “can
expect to live into their 70s” and “[w]hile there is no cure or vaccine for HIV/AIDS,
it is not invariably fatal.” In other words, Batista argues that the health risks from
infection with the HIV virus are not really all that bad. But the question is who gets
to evaluate that risk: should the HIV-positive individual get to assess that risk for
his sexual partner or should the partner get to make her own decision. Fair to say




                                          11
                              SUPREME COURT OF OHIO




that most—if not all—people would insist on the right to make that decision for
themselves.
       {¶ 34} The facts of this case illustrate vividly what is at stake. In enacting
the regulation in question, the government was protecting the victim’s right to make
her own choice about whether to engage in risky sexual relations. Though Batista
invokes his right not to be forced to speak, the victim’s rights in this case are at
least equally worthy of protection. I would conclude that the interrelated interests
of the government that are manifest in the statute—protecting public health and
ensuring informed consent—rise to the level of a compelling governmental interest.
       {¶ 35} Moreover, I would conclude that the means chosen by the state to
further these interests is narrowly tailored and constitutes the least restrictive means
of doing so. Under the statute, a person must disclose his HIV status only if he
wishes to have sex and then only to the person with whom he wishes to have sex.
The only speech that is compelled is speech that is directly necessary for informed
consent. I cannot fathom—and Batista has not advanced—any less restrictive or
more narrowly tailored means that could have been employed by the government
to achieve its interests here. Thus, I find no violation of the rights guaranteed to
Batista under the First Amendment.
       {¶ 36} Nor do I find merit to Batista’s equal-protection claim. Relying upon
its conclusion that the statute regulates conduct, not speech, the majority applies
rational-basis review to the classification. My conclusion that the classification
affects a fundamental right causes me to apply a higher level of scrutiny. See State
v. Williams, 88 Ohio St.3d 513, 530, 728 N.E.2d 342 (2000). I end up in the same
place as the majority, however: because the statute is narrowly tailored to serve a
compelling governmental interest, there is no violation of Batista’s equal-protection
rights under the Ohio or United States Constitutions.




                                          12
                               January Term, 2017




       {¶ 37} For these reasons, I concur in the majority’s judgment that there has
been no violation of the rights guaranteed to Batista under the First Amendment or
the Equal Protection Clauses of the Ohio or United States Constitution.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                              _________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for appellee.
       Raymond T. Faller, Hamilton County Public Defender, and Demetra
Stamatakos and Joshua A. Thompson, Assistant Public Defenders, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Samuel C. Peterson, Deputy Solicitor, urging affirmance on behalf of amicus curiae
Ohio Attorney General Michael DeWine.
       Elizabeth Bonham and Joseph Mead; and Jeffrey Gamso, urging reversal
for amici curiae American Civil Liberties Union of Ohio Foundation, Inc., and
Center for Constitutional Rights.
       Valerie Kunze, Assistant State Public Defender; Gibbons P.C., Lawrence
Lustberg, and Avram Frey; and Catherine Hanssens and Mayo Schreiber Jr., urging
reversal for amici curiae Center for HIV Law and Policy, American Academy of
HIV Medicine, GLBTQ Legal Advocates & Defenders, GLMA: Health
Professionals Advancing LGBT Equality, Human Rights Campaign, National
Association of Criminal Defense Lawyers, National Center for Lesbian Rights,
Office of the Ohio Public Defender, and Treatment Action Group.
                              _________________




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