On July 9, Michael Johnson, a Black gay man from Missouri, made headlines when he was released early after entering a plea deal and being sentenced to 10 years in prison. He had been convicted of “recklessly,” as the ruling judge described it, transmitting HIV to two men, and exposing four others to the virus.
Described as a “flashpoint” for the national discussion on HIV criminalization laws, Johnson’s case resolved just after an HIV criminalization reform bill stalled in the state legislature earlier this year. In a state that had 12,890 people living with HIV by the end of 2017, what, then, is next for the movement to decriminalize people who are HIV positive?
In 2015, Johnson was originally sentenced to 30 years in prison after a racially-charged and biased trial in a mostly-white Missouri suburb. Evidence submitted to the court described Johnson’s penis as “huge”—even presenting images of it. Before that, potential jurors had been asked whether they thought homosexuality was a choice, as BuzzFeed News reported.
Described as “fundamentally unfair” by the Missouri Court of Appeals for the Eastern District in 2016, Johnson’s conviction was overturned because the prosecution had failed to provide evidence to the defense in a timely manner. The Court of Appeals judges also determined the 30-year prison sentence to be unconstitutional and “grossly disproportionate.”
To avoid returning to trial, Johnson accepted a 2017 plea deal that recognized the prosecution had enough evidence to prove his guilt, but did not itself admit guilt, which led to his early release. Johnson continues to maintain that he did disclose his status.
Now on parole, Johnson is returning to a state that still has a law specifically-criminalizing the non-disclosure of HIV status to a sexual partner.
Catherine Hanssens, the executive director of the Brooklyn-based Center for HIV Law and Policy, underscored to Filter that “there was no proof that Michael was the source of transmission and it was [the two men’s] word against his that he didn’t disclose his HIV status.”
“In a case where HIV transmission might have resulted, the otherwise legal conduct of the person diagnosed with HIV becomes a Class A felony—the same as murder,” said Hanssens.
Now on parole, Johnson is returning to a state that still has a law specifically-criminalizing the non-disclosure of HIV status to a sexual partner, regardless of whether a person actually infected their partner, or intended to do so. Recall that, if their viral load is “undetectable,” a person with HIV cannot transmit the virus.
“Michael Johnson became the poster child of HIV criminalization [and] I think what happened to him is cruel,” said Devin Hursey, a peer educator and activist based in Kansas City, Missouri, “but we have to remember that he is not the only one.” For the period between January 2008 and June 2019, The Center for HIV Law and Policy identified 17 media reports of HIV criminalization cases in the state of Missouri.
Efforts to Reform the Law
With the support of activist organizations like Missouri HIV Justice Coalition, state Representative Tracy McCreery introduced a bill (House Bill 166) this past legislative session intended to strike HIV-specific (and hepatitis-specific) language from the law—instead substituting the phrase, “a serious infectious or communicable disease”—and to lower the penalty from a felony to a misdemeanor.
At the same time, Representative Holly Rehder brought a similar bill (HB 167) that also proposed striking the infection-specific language. It diverged from McCreery’s in maintaining the offense as a felony.
For Hursey, HB 167 “reflects the the political reality” of Missouri, while McCreery’s is “the more ideal bill.” Neither made it out of Missouri’s House of Representatives, though HB 167 did get to the final stages of legislative review.
The failed 2019 bills would have prevented HIV from being “listed in [a defendant’s] criminal record explicitly,” explained Hursey. A felony record can make finding employment and housing difficult. Although the Americans with Disabilities Act, the Fair Housing Act and the Missouri Human Rights Act all prohibit discrimination against job applicants, employees, potential residents and tenants on the basis of HIV/AIDS status, people are stripped of their privacy when HIV is specified in an offense.
HB 167 would be an important step towards modernizing HIV law shaped by the widespread racist and homophobic stigma that emerged during the 1980s AIDS epidemic, argue some HIV decriminalization advocates. Joining them, Timothy Lohmar, the lead prosecutor who requested a life sentence in Johnson’s case, reasons that, unlike when the laws were first passed, HIV is no longer considered a “death sentence.” Instead, given “advancements in science and medicine,” like the increasing availability of pre- and post-exposure prophylaxis (PrEP and PEP), Lohmar and others don’t see the need to single out HIV anymore.
“Criminal laws that target a particular disease, based on identities associated with that disease, will always be irrational.”
But Devin Hursey sees HB 167’s language-change as simply a “euphemism.” After all, people positive for the three infections previously targeted could still be charged with felonies for not disclosing their status to a partner. HB 167 also does nothing to mitigate the way that Missouri law imposes harsher penalties for people who do sex work and are HIV-positive. Potentially in addition to an HIV-transmission offense, the penalty for prostitution when living with HIV is raised from a Class B misdemeanor to a Class B felony, punishable by up to 15 years of incarceration—a “30-fold disparity in punishment on HIV status alone.”
“Empower Missouri would like to see a version that treats HIV as other non-criminalized diseases,” said Conner Kerrigan, a spokesperson for the health and social justice advocacy group. Likewise, Catherine Hanssens believes that “Criminal laws that target a particular disease, based on identities associated with that disease, will always be irrational.”
For Hursey, HB 167’s proposed language is racially “coded.” The viruses that Missouri law had previously singled out disproportionately impact Black people and men who have sex with men (MSM). In a state where African Americans comprise 11.8 percent of the population, they constitute nearly half (46 percent) of all people living with HIV. Additionally, MSM make up the majority (62 percent) of those diagnosed with the virus.
The bill “is still harmful,” said Hursey, adding that “It just insults my intelligence. Just because you take the language out, it doesn’t make the bill better.” Kerrigan similarly concluded that the bill has its limitations. “The version of that bill that was debated on the [House] floor is not the version that it needs to be in order to bring justice to those who are affected by these laws,” he told Filter.
Senator Rehder’s office did respond to Filter‘s request for comment by publication time.
Although HB 167 failed to pass and has shortcomings, it did spark important discussions amongst policymakers—which was part of advocates’ strategy, according to Hursey. By introducing two similar bills that took different stances on decriminalization, they could “tease out the nuances” of HIV criminalization for Representatives. And Kerrigan sees that, in itself, “as a success in our efforts,” adding that “We basically got an hour-long seminar on HIV modernization on the floor of the House.”
HB 167 still has a long way to go in the Missouri legislature before it becomes law. Empower Missouri intends to “be hitting it hard” during the 2020 legislative session, said Kerrigan. Until then, they plan to focus on public education. “Legislation only moves when it’s demanded. And we want it to be demanded by constituents. We want people of Missouri to understand the status of HIV as a disease.”
Jada Hicks, a staff attorney at the Center for HIV Law and Policy, recommends that “The fight against HIV criminalization […] focus on an intersectional approach.”
“This is not just about HIV, added the Center’s director, Catherine Hanssens; “it is about identity, race, class, gender and sex when those whom our society disfavors engage in it.”
Hicks hopes that Michael Johnson’s high-profile release will will “spur the legislature to reform its draconian HIV-specific criminal law so that no more young Black men, like Michael, pay the price for others’ ignorance.”