Sex, lies and HIV: When what you don’t tell your partner is a crime
By Sergio Hernandez Special to ProPublica
This story was co-published with BuzzFeed.
The seventh in a series of stories on HIV stigma and criminalization.
Whether Adam Plendl actually faced a significant risk for contracting HIV from Rhoades, or was even exposed to the virus during their encounter remains unclear. HIV is far less transmissible than many other sexually transmitted infections, such as herpes. Even for unprotected anal sex, the riskiest sexual act, the receptive partner’s chances of contracting HIV have been estimated at only five in 1,000. (The insertive partner is at a much lower risk.)
The men agree that Rhoades wore a condom during intercourse, although Plendl claims it fell off. Neither man recalls whether Rhoades ejaculated during the encounter.
But Rhoades was taking a cocktail of three antiretroviral drugs, and his medical records show they were working. The drugs had suppressed the amount of HIV in his blood to such minute levels that it was undetectable in lab tests. A widely heralded 2011 study found that similar patients were 96 percent less likely to pass HIV on to a partner.
The men did not use a condom when Plendl performed oral sex on Rhoades, and prosecutors later argued that the act could have exposed Plendl to pre-seminal fluid containing HIV. While HIV transmission from oral sex has been documented, the CDC says it’s rare, and it considers the risk low. Plendl later said he was suffering from a shaving nick, which, he worried, could have made him more susceptible to transmission.
Lab results eventually con-firmed that Plendl did not contract HIV.
In the days after he visited the emergency room, Plendl co-operated with Mark Abernathy, the Cedar Falls detective who was assigned to investigate the case. Plendl gave Abernathy a copy of Rhoades’ Internet pro-file, which listed his HIV status as negative.
In an interview, Plendl told ProPublica he asked Rhoades if he was “clean.” He explained, “I always ask anyone, before anything, ‘Is your profile correct with your HIV status?’”
Rhoades said he doesn’t remember that exchange, but he admitted to lying about his HIV status online.
“That was different,” he told a prosecutor in 2011. “That was a public openness.” Telling his close friends and family was one thing, Rhoades said, but he didn’t want his HIV infection available to “people who randomly page through profiles on an online website.”
“It’s a stigmatized condition,” he added. “I have a job.”
After their encounter, Rhoades left several voicemails on Plendl’s phone. “I wanted to get together with him,” Rhoades said in an interview. “I wanted to sit down and have the conversation about my HIV status. I didn’t realize that the reason he wasn’t returning my phone calls was because he was already in contact with law enforcement.”
Plendl said he finally called Rhoades back, with his phone wired up to police recording equipment. He confronted Rhoades, who confirmed, on tape, that he was HIV-positive and that the men had engaged in unprotected oral sex during their encounter. The recording would become crucial evidence.
Four days later, on July 14, a Black Hawk County judge approved Detective Abernathy’s request for a search warrant, allowing him to seize Rhoades’ medical records, prescriptions and a sample of his blood.
“They came to my work,” Rhoades said. “I think it was three openly-armed police detectives from an adjacent city.” The officers, he continued, “asked me to go down to the local sheriff’s office and discuss something with them, and they didn’t say what this was about.”
At the sheriff’s station, Abernathy led Rhoades — who was dressed in a striped blue polo shirt, light tan khakis and a pair of white sneakers — to an interview room. Initially, Rhoades signed a Miranda waiver, acknowledging his rights to silence and legal counsel, while Abernathy, a tall, balding man in his early 40s, questioned him about the encounter with Plendl.
“I have a case involving you and an Adam Plendl,” Abernathy said. “Do you know who Mr. Plendl is?”
“I know someone named Adam,” Rhoades replied.
The detective continued, asking how, when and where the meeting with Plendl occurred.
“I’m not trying to make you uncomfortable,” Abernathy said.
“I’m a little uncomfortable,” Rhoades replied.
“What was the intent of the meeting, if you will?”
“It was purely social. And I don’t know if you can subpoena — I don’t know if they keep records of those chat conversations, but if they do, I’d be more than willing to share them, because I was quite clear that it was just a social nature,” Rhoades said.
As the interrogation continued, Rhoades plainly told Abernathy about his HIV status and his phone conversation with Plendl — which, unbeknown to Rhoades, the detective had already listened to.
“He did find out that I’m HIV-positive,” he told the officer, “and he was very concerned about any interaction that he had with me, and I tried to assure him that nothing that happened between us was anything of risk.”
“You said you’re pretty open with it,” Abernathy said. “You don’t advertise it, but you tell your friends?”
“It’s too much to stress about. It’s a bad thing, but the more open I am, the less anxious I feel. And people around me that I’m close to — I think it helps our friendship to be honest.”
“How come you didn’t let Adam know?” the detective asked.
“Again, it’s a need-to-know basis. And there was no — “
“But you guys had sex?”
“You did not have sex?”
“We did not have sex.”
Abernathy had caught Rhoades in a lie, and he bore down on it.
“Are you saying there was no oral or anal penetration?”
“No,” Rhoades answered. “No.”
“You look surprised. Which one of those surprised you?”
“Well, they both surprise me. With my condition I have to be pretty — picky, I guess, about who I’m with and why I’m with them,” Rhoades said. “I’m honest about it. Especially when it comes to a situation that would lead to possibly a sexual encounter.”
Abruptly, Abernathy excused himself from the inter-rogation room. It wasn’t until he returned — and revealed to Rhoades that his phone call with Plendl had been taped — that Rhoades realized how serious the situation had become. He invoked his right to a lawyer, ending the interview, and went with the cops to a local hospital where nurses drew his blood.
When he was finished, he told his mother, “I don’t know if I’m going to be in trouble.”