This Is What HIV Criminalization Can Look Like in Prison

John Dorn's case stands to change wider prison policy around HIV criminalization.

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27 November 2018, 1:04am

João Pedro Menezes / Getty

This article originally appeared on VICE US

In 2012, Michigan inmate John Dorn was nearing parole for his seventeen-year prison sentence when he was accused of having oral sex with another prisoner. He denied it, but both men involved were punished by Michigan Department of Corrections.

The other man was given a slap on the wrist, his privileges revoked for 30 days. Dorn, who is HIV positive, was thrown in solitary confinement for a year.

“I was told by several prison officials that I was being treated differently because of my HIV status,” Dorn says.

Prison officials at Michigan Department of Corrections were operating under a policy which required indefinite isolation of HIV positive inmates who have sex in prison. Chris Gautz, spokesperson for Michigan Department of Corrections, said that it's possible officers were explaining the Department’s policy to Dorn, but "it's not something that would have been said our of malice or spite."

Dorn was locked in his cell for 23 hours per day, unable to communicate with his elderly mother. (Phone privileges were revoked except for “verified family emergencies,” according to a subsequent lawsuit.) Worse, he feared that his new situation meant he had lost his opportunity to meet with the parole board and petition for his timely release.

“I felt helpless and [was] treated unfairly,” Dorn says. He says that, in solitary, he became distraught and suicidal. He passed the time by writing letters to groups like the ACLU, arguing that his punishment was unethical, even illegal.

Dorn’s situation eventually came to the attention of lawyers at Michigan Protection and Advocacy Service and Lambda Legal, a civil rights group focusing on LGBTQ and HIV positive people, who advocated on his behalf. He was released in October 2014, celebrating his 44th birthday as a free man. A few months later, he sued Michigan Department of Corrections.

Dorn and his lawyers argued that the prison’s policy violated a federal law called the Rehabilitation Act, which outlines civil rights for prisoners with disabilities. In November 2018, Michigan Department of Corrections agreed to a settlement in which neither party admitted to any wrongdoing.


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Dorn’s lawyers called the settlement a “victory” because the prison system agreed to update its policy to conform with federal law and award Dorn $150,000. The updated policy reflects a modern understanding of the science of HIV transmission.

“Previously under the policy, there was a presumption that the prisoner could transmit the virus,” says Chris Gautz, public information officer at Michigan Department of Corrections. In the early days of the AIDS epidemic, many people worried that HIV could be passed through casual contact like kissing or shaking hands.

Now experts agree HIV can only be passed via blood contact or sex. Scientists have also since developed powerful drug cocktails in the form of antivirals that are capable of suppressing the virus enough to not transmit. In 2017, the Centers for Disease Control (CDC) said these drugs are so powerful that it would be nearly impossible for people like Dorn, who was taking daily HIV medication, to transmit the virus to anyone else.

Michigan’s new policy will punish HIV positive inmates caught breaking the rules on a case-by case basis with the input of at least two medical professionals to determine the real risk of infection. Prisoners with HIV will not be automatically sent to solitary confinement. In fact, Gautz says two prisoners were removed from segregation (also known as solitary confinement) in the wake of this policy change. “We are pleased with the outcome of the case,” he says.

According to Gautz, the Michigan Department of Corrections’ updated policy is now even more progressive than Michigan state law for the general population. Michigan is one of 25 states that criminalize certain behaviors for everyday people living with HIV.

These so-called “HIV criminalization” laws vary, but many punish things like spitting, biting, and other behaviors that “pose a low or negligible risk for HIV transmission,” according to the CDC. Groups like Lambda Legal and the ACLU are fighting to have them removed, arguing they’re rooted in outdated science.

“Even though state law has not caught up,” Gautz says, “we wanted to be as progressive as possible with our policies and make sure they’re in full accordance with federal law as well.”

According to Dorn’s lawyer, Richard Saenz, who works for Lambda Legal, there’s a long history of discriminating against people with HIV in prison. Scientists discovered the virus that causes AIDS in 1983. By 1984, nearly all state prison systems were quarantining people with HIV, operating under the assumption that the virus could be spread through casual contact.

That assumption turned out to be an over-reaction. Slowly, over the following two decades, HIV positive prisoners were integrated into the general prison population. In 2012, South Carolina became the last state to abandon its policy of systematically segregating people with HIV.

Today’s HIV-specific policies are more nuanced, calling for harsher punishment of HIV positive people rather than automatic quarantine. The idea is that for people with HIV, their bodily fluid constitutes a deadly weapon, so actions like sex and assault should carry a heavier penalty. Saenz and others argue these policies violate civil rights. His firm, Lambda Legal, is currently reviewing other state prison systems to identify policies akin to Michigan Department of Corrections’ prior rule.

“With this settlement, we hope that [other states] take the affirmative step of changing them, like Michigan has done,” Saenz says.

According Melissa Badowski, a pharmacist who treats HIV positive inmates in Illinois, it’s unfair to tack on extra punishment for HIV positive prisoners. “So you’re saying somebody with HIV should never get into a fight because there might be blood, and now there’s malicious intent?” she says, rhetorically. “I don’t think that’s appropriate.”

When Dorn was in solitary confinement, he continued to receive his HIV medication throughout his confinement, but says that the circumstances made it difficult to have honest conversations—about his health or anything else—with the prison’s medical staff. “Any time you come out of your cell you’re in handcuffs, shackles, and bell and chains,” he says. “You’re escorted by two officers, one on either side of you, holding a short tether referred to as a leash—and they have tasers.”

These officers stayed in the room during Dorn’s medical appointments, he says. “That stifled what I felt like I was my ability to communicate freely with my doctor at the time,” he says.

Generally, according to Badowski, prisons do a fairly good job keeping HIV in check among prisoners who are aware of their status and seek treatment. Inmates get daily HIV medications, whereas outside prison they may not have a doctor or medical insurance. In states like North Carolina and Illinois, inmates have better rates of viral suppression—or the amount of virus inside someone's blood—compared to the general population, Badowski says.

But prisoners with HIV face other challenges. Chiefly, HIV is highly stigmatized in prison, with many inmates associating HIV with homosexuality or injection drug use. Corrections officers might use a prisoner’s HIV status against them, threatening to ‘out’ them as a means of coercion.

Dorn says that Michigan corrections officers ‘outed’ his HIV status routinely. And while Gautz insists that Michigan corrections officers “would not have access to a prisoner’s medical file,” Dorn tells me that “there are no secrets in prison” and that corrections officers told fellow inmates about his status at the various prisons he was housed.

While a concrete answer to what actually happened is not currently evident, Badowski says that her patients in Illinois—who include HIV positive inmates—have told her similar stories (to Dorn’s) about corrections officers, though she’s never witnessed such behavior firsthand.

Though some people would have tried to put aside memories of solitary confinement, Dorn decided to keep advocating against the policy that landed him in a segregated cell—a process that ultimately took four years. He’s glad he persisted. “I wanted to see it through, he says. “I didn’t want this to ever happen to someone else.”

Today, Dorn lives in Atlanta, where he runs a landscaping business and volunteers to help support at-risk kids in his community. Though “bittersweet,” Dorn hopes this settlement will ease stigma against people with HIV.

“People with HIV are not pariahs—they’re just like anyone else with any type of chronic medical condition,” he says. “The medicine today allows anyone with HIV to live long healthy lives. We’re no different than anyone else.”