In September 2017, a Missouri court sentenced 25-year-old collegiate wrestler Michael Johnson (pictured above) to 10 years in prison under HIV criminalization laws for “recklessly infecting another with HIV.” His lawyers recently announced that he got parole and will be released on Oct. 9, 2019, nearly six years after his initial arrest.
His arrest and time served are evidence of the injustice of HIV criminalization laws. Five men had accused Johnson of not disclosing his HIV status even though they all consented to condomless anal sex with him and didn’t ask about his status beforehand. One man subsequently contracted the virus.
Buzzfeed reports Johnson’s trial occurred in the “nearly all-white town of St. Charles, Missouri,” and during it the prosecution graphically described and showed pictures of Johnson’s “huge penis” as if it were a weapon.
Johnson will get out of prison if he racks up no other criminal violations before his release. Afterwards, he’ll live with his friend in Indiana and remain under police monitoring until 2023.
How did HIV criminalization laws come about to begin with?
After the rise of the HIV epidemic during the 1980s, when scientists still new very little about the virus or its transmission, stories spread of people maliciously exposing others to HIV. In this climate, states began to pass HIV criminalization laws.
In 1990 the federal government passed the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, a law that provided states with funds for HIV treatment. But the law required states to have criminal laws for prosecuting those who knowingly expose others to HIV. To this day, 30 states still have laws requiring people living with HIV to disclose their HIV-status to sexual partners.
Alas, there aren’t any clear-cut statistics on how often these laws are used because there’s no central database for such info. However, a 2016 report from the HIV Justice Network and the Global Network of People Living with HIV (GNP+) says that the United States had 104 HIV criminalization prosecutions between April 2013 and October 2015. That’s nearly 10 prosecutions per month, putting the United States second only to Russia in prosecutions.
Outside of the United States, 71 other countries have HIV criminalization laws including Canada, France, the U.K. and Germany.
Trials over HIV criminalization rarely involve actual science
The Center for HIV Law and Policy says HIV criminalization laws don’t require prosecutors to prove that the accused person actually transmitted HIV to anyone else. And because HIV tests cannot determine when a person contracted the virus, it’s impossible to determine the source or time of infection.
Some prosecutors rely on “phylogenetic testing” to determine a genetic connection between the HIV viruses of the two parties, but that testing only indicates similarities between different strains of HIV and doesn’t prove the direction of transmission. Many police officers, attorneys, judges and other citizens don’t understand this and take such tests as “proof.”
It’s also hard to determine how fair HIV criminalization trials actually are, as they often abandon science in favor of emotionally charged testimony and graphic sexual detail that turn juries against the accused, often painting the complainant as a “morally innocent” sexual partner betrayed by a partner’s nondisclosure of his or her HIV status.
As we’ve mentioned, it could be that HIV criminalization laws make people afraid to get tested because you can only be charged with the crime if you know your own HIV status. These laws are also disproportionately used against men of color and, according to medical experts, do “not produce positive health outcomes for individuals or populations.”