The Appeal: HIV Activist, Forced to Register as Sex Offender, Appeals to New York's Highest Court

CHLP Staff Attorneys Jada Hicks and Kae Greenberg spoke to Adam Rhodes at The Appeal about Robert Suttle's appeal to New York's highest court. CHLP's December brief to the New York Court of Appeals in support of Suttle argued that both Louisiana’s HIV criminal statute and New York’s treatment of Suttle contravene the Americans with Disabilities Act (ADA).

Read the full article below or at The Appeal.

HIV Activist, Forced to Register as Sex Offender, Appeals to New York's Highest Court

Robert Suttle was required to register as a sex offender in Louisiana after being convicted of exposing someone to HIV. But despite the fact that New York does not require its own residents to register after such a crime, the state is forcing the label on him anyway—and the Manhattan DA’s office is fighting him.

by Adam M. Rhodes, The Appeal 
March 3, 2023

In 2009, Robert Suttle was convicted in Louisiana of illegally exposing someone to HIV without their consent. In most other parts of the country, Suttle would only need to live with a conviction on his record. But Louisiana is one of a handful of states that forces those convicted of such a charge to register as sex offenders, a label that carries life-altering shame and stigma. Suttle has since moved to New York, but the designation still haunts him. He sued to remove the label, but the state’s lower courts have thus far held that Suttle must remain on the registry, even though New York has no HIV-specific criminal laws.

But now, Suttle has asked the New York Court of Appeals, the state’s highest court, to invalidate a law he says unfairly criminalizes people with HIV. In November, an attorney representing Suttle filed leave to appeal, castigating the lower court’s decision to keep Suttle on the sex offender registry.

“The decision permits, if not requires, New York courts to enforce laws of foreign jurisdictions through SORA, no matter how unconstitutional or contrary to New York’s laws and policies,” the brief states. “It specifically undermines the constitutional and statutory mandates that HIV+ persons have a right to privacy in their status.”

In a phone interview, Suttle told The Appeal that the onerous requirements that come with being forced to register as a sex offender have added significant hurdles to his life.

“It’s almost like they just throw you into this situation and just throw away the key, and there’s nobody there to really explain to you, which is what the system just doesn’t do anyway,” Suttle said. He added later: “I’ve been just trying to hang in there, with the hopes that I will be able to sort of move beyond this and really go out and get the things that I want in life.” Suttle told The Appeal in September the charges stemmed from a brief relationship in the early 2000s.

Across the country, HIV-related criminal laws have come under increased scrutiny as science on HIV—and its prevention—have advanced. Highly effective HIV-preventative drugs have proliferated. Medicine regimens can now prevent people living with HIV from passing the virus to their partners.

Legal experts have also argued that such laws, known as “HIV criminalization” laws, disproportionately impact Black and brown people living with HIV, target LGBTQ people in particular, and violate the Americans with Disabilities Act.

The Center for HIV Law and Policy (CHLP), a nonprofit that advocates for the rights of people with HIV, said as much in a December brief to the New York Court of Appeals in support of Suttle. In the filing, CHLP attorney Jada Akers argued that both Louisiana’s HIV criminal statute and New York’s treatment of Suttle contravene the ADA.

“The NY Courts cannot just collectively bury their heads in the sand and ignore the fact that the underlying Louisiana conviction for which Mr. Suttle has to now register as a sex offender in New York is clearly due to a discriminatory law,” Akers wrote in the brief.

Louisiana is one of 14 states that have repealed or amended their HIV-related criminal statutes in the past decade. Texas was the first in 1994. Last year, New Jersey became the third state to repeal its HIV criminal statute fully. That law, while enacted, let prosecutors charge people who did not report their HIV status to sexual partners.

In 2014, the New York State Board of Examiners of Sex Offenders decided that Suttle had to register as a sex offender due to his conviction in Louisiana.

Suttle challenged that decision in court, but a state appeals court unanimously ruled in October that the board had decided correctly. Now that Suttle has brought his case to the New York Court of Appeals, the Manhattan District Attorney’s Office—which previously said it would not fight Suttle’s efforts—has filed briefs opposing him.

In a brief filed in court, Assistant District Attorney Kelly Fulham wrote that, while the Manhattan DA’s office opposes the law impacting Suttle, prosecutors were legally bound to enforce it.

“People support a legislative amendment to the foreign registration provision that would remove the registration requirement in circumstances like these,” she wrote. “Under the statute as currently enacted, however, the Board’s determination that [Suttle] must register is consistent with [state law].”

In an emailed statement to The Appeal, a spokesperson from Manhattan District Attorney Alvin Bragg’s office said prosecutors’ hands are tied. The spokesperson said that the office does not support HIV criminalization but, due to the “confines of the law,” has no choice other than to oppose Suttle.

The spokesperson added that the DA’s office previously sent a proposal to the state legislature to change the law and prevent people like Suttle from being forced into these situations.

But legal experts from CHLP hit back at the DA Office’s claims. Kae Greenberg, a staff attorney at CHLP, told The Appeal that prosecutors should have “the courage to take a potentially unpopular stand in the midst of a political minefield,” since removing Suttle from the offender registry is “in the interest of justice.”

And, given the ongoing national rise in anti-LGBTQ hatred, Greenberg said the DA’s present position is a treacherous one to take.

“Currently, as other statutes that are still on the books in other states criminalizing abortion come back in full force, as states rush to criminalize drag shows and gender-affirming care, the ‘my hands are tied’ argument is a dangerous one to be made by an elected official tasked with promoting the safety of all New Yorkers,” he said.