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America's HIV Criminalization Laws Are Outdated and Out of Touch

Decades-long sentences are handed down for low- or no-risk behavior.

by Harron Walker
Dec 27 2016, 7:49pm

Image via Minnesota AIDS Project / HIV Stigma Stops Here / Twin Cities Pride Parade on Flickr

Last week, after a highly controversial trial, a Missouri court of appeals threw out the conviction of college wrestler Michael Johnson, who was sentenced last May to over 30 years in prison for "recklessly" infecting a sexual partner with HIV and exposing four others to the virus.

Johnson maintains he told his partners he was HIV-positive before they had sex. They say he didn't, which is a felony in Missouri. The Missouri Court of Appeals declined to rule on the nature of his sentence—Johnson has argued that the length is disproportionate to the crime, constituting cruel and unusual punishment. However, the court did agree that prosecutors had strategically withheld evidence from Johnson's attorneys in order to convict him.

The decision could spell good news for Johnson, who remains incarcerated. But advocates say the case highlights a larger problem within the American criminal justice system: the prevalence of a widespread body of HIV criminalization laws, which use medically outdated criminal law to stigmatize people living with the virus.

Thirty-two states have laws that explicitly criminalize the transmission of HIV, according to the Movement Advancement Project (MAP), a LGBTQ law and policy think tank. An additional six prosecute exposure and transmission through laws concerning sexually transmitted infections. These laws, which advocates for HIV-affected communities say are based more in stigma than fact, have led to decades-long sentences for those convicted. Many do not take low-risk behavior, like condom use, into consideration. Others ignore the fact that some behaviors, like spitting or biting, have been scientifically proven to be unable to transmit HIV.

The first HIV criminalization laws were introduced in 1986, and medical knowledge has advanced by leaps and bounds in that time. But despite the fact that those with an undetectable viral load are virtually unable to transmit the virus, and that HIV is now a highly treatable condition, lawmakers remain stuck in the past, a stance that has disproportionately impacted people of color, who have been most impacted by both HIV/AIDS and the American criminal justice system. That's why many advocates for HIV-affected communities seek to reform or outright repeal America's HIV criminalization laws, state by state.

"These laws do not promote public health," said Kate Boulton, a Staff Attorney at the Center for HIV Law and Policy, an organization that advocates for the rights and needs of HIV-affected communities. "[They] really do the opposite. There's no evidence that they promote safer sexual behavior or promote the disclosure of one's HIV status. They function to create a disincentive to knowing your status, since [one can only be prosecuted] if you know."

The result, she said, is nothing but more incarceration, more disrupted lives, and more "stigma and discrimination against people living with HIV."

Trials like Johnson's are nothing new. Examples of prosecutors using HIV criminalization laws to serve disproportionate sentences abound, from the case of Patrice Michelle Ginn, who was sentenced to prison for failing to disclose her status to a partner despite witness testimony to the contrary, to that of Willie Campbell, who is serving 35 years in prison for spitting in the eye and mouth of a police officer.

Most HIV criminalization legislation was passed in the 1980s and 90s, at the height of the AIDS epidemic, but these laws are far from uncommon today. In 2011, Nebraska passed the nation's most recent HIV criminalization law, making "assault with a[n HIV-infected] bodily fluid against a public safety officer" a felony. The law named saliva as one of those bodily fluids, despite the fact that saliva carries no risk of transmission—something scientists had proven long before 2011.

"Since the beginning of the epidemic, when many of these criminalization laws were enacted, treatment for HIV/AIDS has been revolutionized," said Peter Meacher, the Callen-Lorde Community Health Center's chief medical officer. "In many ways, these laws were a product of their times—fear and panic were rampant, even within the medical community. Thanks to advances in treatment, today, people with suppressed viral loads have lifespans not much different from those who are HIV negative. Additionally, having a suppressed or undetectable viral load makes it very unlikely that the individual can transmit HIV."

A number of experts, right up to the United States Department of Justice, agree that there are only two ways forward to bring these laws in line with modern science: repeal or reform them. Either course would need to take place at the state level, and, as such, repeal might be a more viable solution in some states, and vice-versa.

As far as reform is concerned, Boulton said states should lower felony convictions to misdemeanors and update legislation to align with current medical knowledge about transmission. These reforms would reduce the magnitude of sentences and take low-risk behavior into consideration, while removing no-risk behavior, like spitting and biting, from consideration entirely.

Reform has happened once before. In 2014, Iowa became the first state to replace a flat 25-year prison sentence for exposing others to HIV with a tiered-sentencing system that takes low-risk and no-risk behavior into account. It was largely motivated by public backlash over the conviction of Nick Rhodes in 2008, who was sentenced to 25 years in prison for failing to disclose his status to a sexual partner before having sex, despite the fact that he wore a condom and did not transmit the virus to his partner.

The Iowa Supreme Court reversed his conviction in 2014, meaning that Rhodes met some sort of justice. The same sort of justice might find its way to Michael Johnson in the coming years, but is retroactive justice really justice at all? Not for advocates who seek full repeal of HIV criminalization laws.

"We need to eradicate all laws criminalizing people on the basis of HIV status," said Naina Khanna, the executive director of Positive Women's Network, who recommends restorative justice models and counseling services in their place.