On Monday, July 13, National Public Radio sparked an interestingly divided conversation between my husband and me. Normally on the ride home from work, I keep NPR on at a low volume for background noise and to (hopefully) absorb some news.
But this time, when I heard “Michael Johnson,” I immediately turned up the volume and asked my husband to listen. The reporter provided quick details on the sentencing hearing and gave a short background of the case.
Earlier that afternoon, St. Charles County, Missouri, Circuit Judge Jon Cunningham sentenced Michael Johnson, a 23-year-old former college wrestler to 30 years in prison on one count of “recklessly infecting another with HIV” and 30.5 years in prison for four counts of “recklessly risking infection of another with HIV.” The judge decided to allow Johnson’s four lesser charges to run concurrently with his 30-year sentence.
Once the report was over, I turned the volume down and immediately expressed my dissatisfaction with the sentencing and, more generally, with HIV criminalization. As a person living with HIV who is also involved with policy work, this case is of particular interest to me. Since we are in a serodiscordant relationship, I value my husband’s opinions on HIV-related issues. While he agreed the sentence was extraordinary, he did not fully agree with my stance that both parties in a sexual experience are responsible for their own health, even when one of the parties is HIV-positive. While we may not agree on that particular piece (I promise he’s not in the doghouse), many people across the United States share his opinion.
After news outlets began reporting on the sentencing hearing, I spent hours reading each report along with the comments on each of the articles. I know, I know – don’t read the comments. But these comments were filled with an amazing variety of voices across the spectrum of HIV criminalization: people who are outraged at the charges and sentence, people who find fault with how the trial was conducted but agree with some form of sentence, and people who think the sentence was neither long nor harsh enough. While it’s easy to get lost in the heat of online comments, it is of utmost importance to realize how the justice system failed Michael Johnson.
Johnson’s trial – underscored by racism, homophobia, and lack of science-based information about HIV – lasted just five days. The jury was all white except for one black juror and all over the age of 30; some jurors expressed the belief that homosexuality is a sin. So much for a jury of Johnson’s peers.
After little over two hours of deliberation, this jury found Johnson guilty of one count of HIV transmission and four counts of HIV exposure. The first guilty finding – HIV transmission – is a Class A felony in Missouri; for comparison, other Class A felonies include murder, forcible rape of a child under twelve years old, and first degree kidnapping. The other four guilty findings – HIV exposure – are considered Class B felonies in Missouri; other class B felonies include voluntary manslaughter and first degree burglary.
Equating HIV transmission and exposure to murder and voluntary manslaughter, respectively, is both a gross false equivalence and hazardously outdated rhetoric. The laws under which Johnson was convicted were passed in 1988 in the height of the AIDS crisis. HIV criminalization laws place the onus of sexual responsibility solely on the person living with HIV.
I believe anyone who chooses to engage in sexual activity carries equal responsibility for his/her own health. Unfortunately, in Missouri and 32 other states, the law states otherwise and places greater responsibility on the person living with HIV. These HIV criminalization laws along with sentences like Johnson’s only deter people from being tested to know their HIV status.
Since these laws were passed, undeniable advances have been made in treatment, care, and prevention of HIV. Thanks to antiretroviral therapy, HIV is no longer the “death sentence” it was in the 1980s and early 90s. People living with HIV who are actively engaged in care can expect to live almost as long as their negative counterparts. The advances in treatment, care, and prevention have also provided more robust understanding of how HIV is actually transmitted. According to the Centers for Disease Control and Prevention (CDC), HIV is spread mainly through having sex or sharing injection drug equipment such as needles with someone who has HIV. To be clear: HIV is not spread by day-to-day contact in the workplace, schools, or social settings. HIV is not spread through shaking hands, hugging, or a casual kiss. You cannot become infected from a toilet seat, a drinking fountain, a doorknob, dishes, drinking glasses, food, cigarettes, pets, insects, or being spat upon or scratched. HIV is not spread through the air nor does it live long outside the body.
While all of this information is readily available to the public and accepted by the medical professional community, society is plagued by stigma, misinformation, and lack of education around HIV. No scientific information was presented during testimony in Johnson’s trial, and no medical evidence was brought forth linking Johnson to the person to whom he was found guilty of transmitting HIV. During their testimonies, Johnson’s accusers stated under oath that Johnson either never disclosed his HIV status or stated he was HIV negative. During Johnson’s testimony, he stated under oath that he did disclose his status as HIV positive. Let’s face it: one or more people are guilty of perjury.
Aside from the justice system, it’s worth noting how the prevention, education, and linkage to care efforts of local and state health departments also failed Michael Johnson. During testimony, it was revealed that Johnson was diagnosed with HIV in Indiana in 2011 and re-diagnosed two years later in Missouri. This duplicate diagnosis showcases the failures of two systems to properly execute post-diagnosis education and link Johnson to care. After his arrest, Johnson has now been linked to care for close to a year.
So, what can be done? As advocates and activists, it is our duty to work toward repealing and/or revising laws that don’t make sense compared to the science available about HIV. According to a joint review by the CDC, the Oak Ridge Institute for Science and Education, and the United States Department of Justice, 25 of the 33 states with HIV criminalization laws specifically criminalize one or more behaviors that pose a low risk for HIV transmission (including oral sex) or behaviors posing negligible risk (including biting or spitting).
Most HIV criminalization laws were passed before the widespread availability of antiretroviral therapy and before the knowledge that such therapy greatly reduces the risk of HIV transmission. It’s time to bring these laws – and the sentences attached to being convicted – into the 21st century.
We must do better.
ALEX SMITH is the Director of Policy and Advocacy for AIDS Alabama. He leads the Alabama HIV/AIDS Policy Partnership and is a member of the Federal AIDS Policy Partnership.
