Disclosure and discrimination in criminal law
Positively Aware Catherine Hanssens
By Catherine Hanssens @CatHanssens

The majority of people in communities heavily affected by HIV—gay men and women of color for example—believe that someone with HIV who has sex without disclosing their HIV status should go to jail. Not surprisingly, this view is consistent with where the rest of the public appears to stand. And those views are reflected in the laws and policies of 32 states that make it a crime for people living with HIV to expose someone to the virus without first disclosing their HIV status. Many of these laws criminalize even spitting and biting and a host of activities that pose little or no transmission risk; all but one make violation of these laws a serious felony; 10 require those convicted to register as sex offenders.

It is understandable that most people believe that if you are living with HIV, you have a responsibility to tell your sex partners. It is a serious, treatable but currently incurable disease.

If asked, most people also will say that those of us with herpes (incurable), syphilis, gonorrhea (god forbid if it’s the treatment-resistant kind), chlamydia, and HPV (also incurable) have a responsibility to disclose our STIs to potential sex partners. The thing is, many people don’t disclose some or any of this at least once and, for some, many times over the course of their sex lives. Yet few people would say that a failure to disclose HPV (the cause of most fatal cervical, vaginal, and anal cancers) should land someone in prison.

Few among us have never hid or lied about some fact about ourselves that we feared would short-circuit a relationship or a hook-up. There are many things that a current or potential partner might consider very relevant to consenting to have sex or stay with us. And so we lie about having diseases, spouses, another partner, a job, a vasectomy, a desire to marry, an intention to divorce a spouse, and so on into near-infinity. These deceits all cause harm of varying degrees. Some of these lies are painful; some of them can have lifelong consequences.

So why the hang-’em-high response to discoveries of HIV non-disclosure?

The fact is that while most states also have laws that mandate disclosure or prohibit sexual contact when one has any STI, most of those laws are 1) minor misdemeanors and 2) rarely if ever enforced. Another fact is that people infected with other forms of STIs who decide to pursue legal recourse almost always file civil tort claims against their partners, not criminal charges.

Those of us who haven’t been living under a rock since becoming sexually active know that sex and intimacy come with risks. We may not know all the particulars—after all, we don’t talk about it much in schools, and doctors are notoriously uncomfortable discussing sex with their patients of any age. But we know at least in general terms that diseases and heartache are part of the potential cost of sexual intimacy. Metaphorically speaking, there is no free lunch.

But let’s say we don’t really know the risks. Somehow we have managed to remain steadfastly ignorant. Let’s say there really are gay men who use online hook-up sites or apps like Grindr who have no idea that having unprotected anal sex poses some risk of disease, be it HIV or gonorrhea or syphilis or herpes. Is ignorance a defense?

If this were a legal question, the answer would be no. No one charged with an HIV-related felony ever got off because they had no idea they could go to prison for decades for having HIV and sex. And in fact, studies show that most people are not familiar with the HIV law in the 32 states with HIV specific criminal laws or the other states (such as Texas and New York) that don’t but prosecute people with HIV under general criminal laws like reckless endangerment or aggravated assault.

Someone can seek out his dream lover on a pick-up app like Grindr and have sex with a stranger and be treated as credible when he says, in testimony against the person he sought out for sex, I had no idea I was at risk for HIV. A recent sad example of this is the case of Michael Johnson.

Johnson, a 23-year-old former college wrestler who spent nearly two years in jail waiting for trial because he couldn’t make the $100,000 bail, was convicted of one class A felony and four class B felonies for having consensual sex without telling, or by deceiving, his partners about his HIV status (he says he did disclose at least part of the time). The complaining witnesses insisted they had no idea they were at risk for HIV by having condomless anal sex with Johnson. The one complainant whose case against Michael Johnson was dismissed is now selling a book describing his supposed victimization on Amazon.com (Kindle price: $25).

On July 18th Johnson was sentenced to a total of 60.5 years, although with some of the sentences running concurrently his actual sentence is 30.5 years, a sentence typically reserved for murder. If he were a repeat offender who killed someone while driving drunk, he would have received far less time.

This might make some sense if HIV were equivalent to anthrax. But nothing could be further from the truth. With treatment—and only one pill a day for most—a person living with HIV can expect to live as long and as productively as anyone else.

Also unlike anthrax, HIV is not an easy virus to transmit. Multiple studies over decades show that HIV is a lot harder to transmit than all those other potentially serious STIs. The average risk of contracting HIV through receptive anal intercourse, the riskiest behavior, is 138 in 10,000 exposures, meaning that transmission in the course of a single sexual contact does not occur, on average, 99% of the time. The risk from any form of oral sex is negligible to zero. The use of condoms reduces the risk of getting or transmitting HIV by another 80%. Using both condoms and antiretroviral therapy reduces the already small risk of getting HIV from sexual exposure by 99.2%, to zero or near-zero.

From the very outset of Michael Johnson’s trial earlier this year, the prosecutor repeatedly stated that Johnson’s actions were equivalent to driving while intoxicated (DWI). If you accept that analogy, you should know that under Missouri law, DWI is a class B misdemeanor. First offenders, if convicted, face a maximum penalty of six months in jail and most people get far less on an initial charge.

This is Webster dictionary-defined hysteria, the perfect storm of deeply ingrained homophobia, racism with all of the associated sexual stereotypes, and steadfast ignorance about HIV transmission routes, risks, and current-day realities.

Treating a positive HIV test as an element of a crime has done nothing to change anyone’s sexual behavior or tendency to disclose his or her HIV or other STI diagnoses. The laws that
do this have done nothing to keep people safe from disease, but they have ruined hundreds of lives.

There may be no hard data on how these laws influence HIV testing behavior. But it would be foolish to ignore the implications of Michael Johnson’s treatment for other young Black gay men, who see him facing decades behind bars because he is a young, handsome, openly gay, sexually active HIV-positive Black man. 

Catherine Hanssens, Executive Director and Founder of the Center for HIV Law and Policy, has been active in HIV legal and policy issues since 1984. Previously, Hanssens was AIDS Project Director at Lambda Legal, where she led Lambda’s HIV-related litigation and policy work. She also has been a visiting clinical professor at Rutgers University Law School-Newark and Director of the law school’s Women and AIDS Clinic.

Go to hivlawandpolicy.org and the site’s HIV Policy Resource Bank, a comprehensive database of materials on 37 topics of importance to people living with HIV and their advocates, including brief summaries to quickly determine the relevance of each resource to your specific needs.