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Being HIV-Positive Can Still Be A Crime

The public-health effort to modernize HIV criminalization laws

Yesterday was National Youth HIV and AIDS Awareness Day, an annual celebration of the work young people do to fight the HIV/AIDS epidemic and an opportunity to share ideas about what needs to happen next.

Yesterday also was when the news of Michael Johnson’s parole began to make its way across the internet. Johnson, an HIV-positive college wrestler in Missouri, made headlines in 2015 when he was sentenced to 30 years in prison for having unprotected sex with six other men. According to state law, Johnson had behaved “recklessly” and committed a felony. In particular, in Missouri, not disclosing your positive status to someone you have sex with is a “B” class felony when HIV isn’t passed along and an “A” class felony when it is.

As reported by Steven Thrasher in BuzzFeed, Johnson’s case is just one of many examples of the way state-level politics criminalize those who are HIV-positive folks, in some cases treating HIV and AIDS status as a crime instead of a public-health issue:

“At least ’67 laws explicitly focused on persons living with HIV had been enacted in 33 states’ by 2011, according to an analysis by the Centers for Disease Control and Prevention and researchers from the U.S. Department of Justice. In Missouri, where Johnson was convicted, people living with HIV can face life in prison for exposing others to HIV if they have sex without first disclosing that they have the virus.”

Johnson’s original 30-year sentence was overturned after a 2016 appeal, and he accepted a plea bargain of 10 years in jail to avoid another trial (unsurprising given the nature of his first trial, which included images of his penis, which the prosecution called “huge,” and the screening of sex tapes with men besides the ones involved in the trial). Now, with the news of his parole, Johnson will remain in jail for up to another 18 months, at which time he’ll have served more than half of his 10-year sentence.

“The Michael Johnson case was kind of doomed from the beginning,” explains Preston D. Mitchum, a lawyer and activist, as well as the International Policy Analyst at Advocates for Youth in Washington, D.C. “I remember first hearing about it and thinking, What a perfect storm of homophobia-meets-racism-meets-an-already-punitive-criminal-justice-system. I also knew how it was going to play out from the moment the media began referring to Johnson as Tiger Mandingo [his college wrestling name] more so than his actual name. This name was used to further justify the idea that a black man had somehow victimized white men, and thus, he was criminalized.

“These laws aren’t new,” Mitchum continues. “They’ve been around for about 20 or 25 years. In most cases, they were created a couple of years after the initial onset of HIV. Even though science has now progressed, further justifying why laws that criminalize HIV are wrong, I’ve always thought they were wrong regardless. As a black, gay man, any law that negatively impacts some communities more than others isn’t worth having. Today, though, when I work with youth, we talk about how the criminal justice system interacts with people living with HIV, stigma and discrimination because a new generation of young people are going to have to inform this conversation and get these policies reduced, and ultimately, eliminated.”

For those living with HIV, the science has felt slow, too. For example, the Centers for Disease Control announced that positive people receiving treatment weren’t able to transmit the disease just last year, which wasn’t exactly news to a lot of those living with HIV. “It was like, ‘Thank you CDC for confirming — even though we all knew for a while that you can’t transmit the virus if you’re undetectable.’ That said, you could still be put in jail in 25 different states for not disclosing your status even while undetectable, which is part of the systemic discrimination against people living with HIV. This is the same reason PrEP isn’t more widely prescribed. We could get a generation of folks on PrEP, and it would end HIV but we don’t because of the bureaucracy of Big Pharma and the way people stigmatize certain types of sex,” my friend Vas told me earlier this year.

Vas became poz while he was going to college in his home state of North Carolina, where HIV criminalization laws were first enacted in 1988. Of course, these laws were considered guardians of public health when they were first created — seen as a way to protect against new transmission of the virus as well as to criminalize intentional transmission of the virus. But decades later, the emphasis on intentional transmission has been lost — too often confused with general exposure.

Worse yet, data shows that criminalizing HIV in this way only makes people less willing to be tested and less likely to use condoms. “There are great concerns surrounding how negative, crime-related framing of media reports and discourse surrounding HIV criminalization cases could deter HIV testing and increase HIV stigma and discrimination,” a study published by a team of Canadian doctors found earlier this year. “Hence, HIV criminalization laws could also make disclosure and/or condom use conversations even harder. This is especially true among racialized and immigrant populations in Canada, who already face a burden of higher HIV prevalence within their communities, already have lower HIV testing rates and have been overrepresented in the media and on criminal charges with regard to HIV criminalization cases.”

The same goes for here in the U.S., where the populations most vulnerable to HIV are also the most overpoliced and prosecuted. The CDC reports that half of black gay men and a quarter of Latino gay men are expected to be diagnosed within their lifetime and that black men are more impacted by HIV than any other American population: “African Americans are by far the most affected racial or ethnic group with a lifetime HIV risk of 1 in 20 for men (compared to 1 in 132 for whites).”

Additionally, as Trasher points out, criminalization fosters “the dangerous belief that only the person who has tested positive for HIV is responsible for preventing transmission of the virus.

Taken together, all of this can make it seem as though our cultural conceptions of HIV haven’t evolved since the original AIDS crisis in the 1980s, which California State Senator Scott Weiner touched upon following his successful campaign (via a piece of legislation known as SB 239) to modernize the laws around HIV in California last year:

“Since the bill was signed into law, the right wing has had a meltdown, with vile posts reminiscent of the ignorance, hatred and fear that led to these laws being passed in the 1980s and that led, at that time, to calls to quarantine people living with HIV. … I thought we’d moved past the 1980s demonization of people living with HIV. I guess not. Whether in 1985 or 2017, people living with HIV are viewed as sociopaths who run around trying to infect people. Never mind that that kind of behavior is very rare. Never mind that those aren’t the people being prosecuted under these laws. Never mind that SB 239 keeps on the books the sentencing enhancement for HIV-positive people who rape people.”

Weiner also raises a good point in terms of how states with these laws unfairly discriminate against HIV as compared other diseases:

“California law treats every other serious and deadly infectious disease as a misdemeanor. Only HIV is singled out for harsh felony treatment. That’s wrong and makes no sense. SB 239 doesn’t eliminate criminal penalties for reckless behavior by people living with HIV. Rather, it simply aligns our criminal treatment of HIV with how we treat every other serious infectious disease in existence: as a misdemeanor. That’s why the Los Angeles and San Francisco District Attorneys endorsed the bill and no law enforcement agencies opposed it.”

But as some states (like California) reform their laws, other states (like Georgia and Kentucky) are pushing for the implementation of new discriminatory policies. As explained by the Human Rights Coalition:

“Georgia’s HB 737 would force individuals to submit to court-ordered blood tests where a law enforcement officer alleges to have been exposed to blood or other bodily fluids that could result in HIV, Hepatitis B or Hepatitis C. The bill passed committee on February 5th. Kentucky’s HB 193 reached the House for consideration on February 16 and could be voted on any day now. As introduced, the Kentucky bill would criminalize the common cold as the definition of “communicable disease” [and] would include diseases that are unlikely to cause lasting harm, much less harm warranting felony punishment. In the face of affirmative votes to push the bill to the House floor, a number of legislators took issue with the dangerously broad language that would punish the mere passing of the flu or common cold. This hearing revealed that HIV education is still needed in both the legislature and in the community.”

There are people in jail today because they spat on a police officer while positive, even though saliva doesn’t give someone HIV. Meanwhile, a positive man who had escaped police abuse in his country of origin almost got deported for receiving oral sex while positive, even though transmitting HIV through fellatio is very rare.

Moreover, the weaponization of HIV is mostly a fallacy (and as Weiner points out, in the few cases where it’s occurred, there are still punishments on the books to mete out the proper justice). In fact, the only time it’s typically weaponized is when it’s used against the people who are pos — people like Michael Johnson.