Judge Questions the Constitutionality of Hiv Law Used to Charge Cleveland Priest

By James F. McCarty
Plain Dealer
August 18, 2014

http://www.cleveland.com/court-justice/index.ssf/2014/08/judge_questions_the_constituti.html

The Rev. James McGonegal, former pastor of St. Ignatius of Antioch Church on Cleveland's West Side.

The soliciting case against a Cleveland priest was thrown into doubt this morning after a judge questioned the constitutionality of the law governing the crime he was charged with.

The Rev. James McGonegal, 69, the former pastor of St. Ignatius of Antioch Church, is charged with soliciting sex from an undercover ranger at Edgewater Park last October.

The charge is a felony because McGonegal is HIV positive, but failed to divulge this to his intended partner.

McGonegal's scheduled trial in Cuyahoga County Common Pleas Court today was postponed after defense attorney Henry Hilow asked the judge to consider his argument that the Ohio statute used to charge his client is outdated, and the case should be dismissed.

Hilow noted that medical advancements in HIV treatment since the law was passed in 1996 place the likelihood of infecting a partner at less than 1 percent.

"Eighteen years have passed since this law was enacted, and facts that existed then don't exist today," Hilow said. "My client is being charged with a felony for the mere presence of HIV."

Assistant County Prosecutor Ed Fadel said Hilow's arguments were based on "speculation and hypotheticals," and that the likelihood of transmission was not an element of the state law. He noted that Ohio is among 34 states that have similar laws making solicitation by HIV-infected people a felony.

Judge Stuart Friedman cited statistics from the Centers for Disease Control and Prevention that found oral sex with an HIV-infected person would result in transmission of the disease in less than four of 10,000 cases.

"I find it troubling that we're talking here about activity that, under the worst of circumstances, were the defendant not on an antiretroviral program and without protection," would not have resulted in transmission of the disease, Friedman said.

If the HIV element was removed from the case, McGonegal would face only a misdemeanor charge, Friedman said.

"If he had not volunteered that he had HIV and been tested these results might have been negative," Friedman said, because McGonegal is on a antiretroviral regimen.

Friedman told the opposing attorneys to prepare briefs on the case and file them by Wednesday, and the judge would attempt to make a ruling by Friday.

Pretrial negotiations involved McGonegal's eligibility for an early intervention program under which he would plead guilty, then enter a rehabilitation program. After he successfully completed the program, the case would be dismissed and his record expunged, a prosecutor's spokesman said.

In January, McGonegal entered a program at a residential treatment facility for priests, the St. Luke Institute in Silver Spring, Md., that required a stay of from five to six months.