How service members living with HIV are subjected to criminalization
By Joseph Darius Jaafari @josephjaafari

Zachary remembers the exact date he was diagnosed with HIV while serving in the armed forces. He remembers exactly the situation that got him there—a bad relationship with a cheating partner—and he remembers feeling completely numb for days. The one thing he doesn’t remember that well is signing an order that would eventually result in him being charged with felony assault and a military court martial because of his HIV status.

“I was so out of it after being diagnosed, I didn’t know what exactly was being said to me. I was in a daze,” said Zachary, which is not his real name; he was granted anonymity because of fears of retaliation.

Zachary said he lived in a haze—an almost zombie-like trance where nothing made sense for days on end. The feeling is not lost on other service members interviewed for this story who were diagnosed with HIV while serving. That state of shock lasted for days with many, and, for some, a few weeks.

It’s during that time period immediately after diagnosis that the military makes their best efforts to get HIV-positive service members access to medication and therapy, but it is also the time when important documents are presented and signed off by military members. Included in that list of documents is a safe sex order that requires soldiers to verbally express their status to doctors or dentists, avoid certain types of sexual contact, and to always wear a condom—even during oral sex.

But science and the progress of HIV medication, prevention, and transmission isn’t behind the military’s safe sex orders, which if violated can result in military charges of felony assault and a court martial for failure to abide by an order. 

Despite national trends, HIV in the military has actually gone up since 2011, according to the Defense Health Agency’s Medical Surveillance Report published in 2015.

A Fear of Tears

HIV has become less of a problematic disease as doctors and health departments in high-risk urban cities across the country have pushed for the marketing and daily usage of pre-exposure prophylaxis, or PrEP—the medical protocol that reduces exposure to HIV by up to 99 percent. Since 2012, there have only been a few cases of someone on the treatment actually contracting the virus.

And medical advances in the treatment of those living with HIV has proven to be 100 percent effective in not transmitting the virus if the person infected is at an undetectable level—the level in which the virus can’t be traced in their blood stream.

But despite those national trends, HIV in the military has actually gone up since 2011, according to the Defense Health Agency’s Medical Surveillance Report published in 2015.

The military began testing and tracking HIV service members 30 years ago. In 1986, roughly five years after the HIV and AIDS epidemic began, the military tested during enlistment and barred anyone who tested positive. By the time the AIDS crisis began to lessen in the mid-1990s, the Army and Navy started testing more regularly. Service members are now tested every two years after enlistment as well as before deployment.

But the Centers for Disease Control (CDC) suggest testing for HIV among men who have sex with men—or other high-risk populations—every three months. And based on who you speak with, military personnel should be one of those populations with greater vulnerability to HIV.

“The military, depending on how you look at it, could be seen as high risk for contracting HIV,” says Matt Rose, policy and advocacy manager with NMAC (formerly known as the National Minority AIDS Council) in Washington, D.C, referring to exposure on the battle field to blood or in medical situations where open wounds could come in contact with others.

Brian Ledford, a former Marine who was diagnosed with HIV in 2010, says that the two-year testing period provided a false sense of security. “I was dumb and should’ve known better, but I just thought, you know, I’m already getting tested so it’ll be fine,” Ledford said.

Ledford’s mentality was echoed by former Army Cpt. Josh Seefried, the founder of the LGBTQ military group OutServe. In a phone interview, Seefried said OutServe warned military health leaders that HIV was a problem within the armed forces a decade ago.

“People have this mindset that since you’re tested and you’re in the military, it must be okay to have unprotected sex,” he says. “That obviously leads to a higher infection rate.”

Ledford is a shining case study of the policy’s missteps. He tested positive before his deployment out of San Diego. He says because the Navy offered routine tests, he never bothered to get tested independently, despite being sexually active.

Ledford said he remembers being taken back to San Diego for “legal reasons,” and after he was told about his status he was kept locked alone in a barracks hall on base for a week.

“I was left completely alone, I had no one to talk to. It was awful,” he said, and added that he thought his handlers didn’t know what to do with him after being diagnosed.

The treatment Ledford experienced doesn’t sound unusual to other soldiers who tested HIV-positive while serving in the military.

“In general, we don’t have a lot of good education awareness within the military on being HIV-positive,” said Matt Thorne, the current executive director of OutServe-SLDN. (SLDN—Servicemembers Legal Defense Network—provided services to gay and lesbian military personnel and veterans, and later merged with OutServe.) “People are looking back and they’re reflecting on those initial horrors. But the truth of the matter is that it’s not a death disease anymore.”

Peter Perkowski, OutServe-SLDN’s legal director, said the education surrounding HIV in the military is shocking.

“It’s pretty mind-boggling some of the things people still think,” he said, remembering a case where he witnessed someone consoling a friend who was diagnosed with HIV, and then later saying they were afraid to be infected by the friend’s tears. “That was just—insane.”

Science Not In Command

In 2016, Zachary invited a friend over on base who he met off a gay sex hookup website.

“I honestly thought we were going to watch a movie and that be that,” he said. But anyone who can read between the lines could easily interpret and give a nod to this encounter as a “Netflix and Chill” situation (code for more than just watching a movie).

Nonetheless, Zachary made his intentions and his status clear—he knew that much, that he had to disclose his status to everyone. But it was via online.

“I’ve never hid my status among people. It’s everywhere on my Facebook and [other social media sites],” he said. “And it says right there on [the website we met on] that I’m positive.”

Zachary had sex with a condom that night. But even if he hadn’t, he already had an undetectable status at that point, making transmission a near impossibility.

Months after the movie night, Zachary found himself being questioned by military officials, saying he was accused of violating his safe sex order for not verbally expressing his status and was being charged with assault and could face discharge.

Charging HIV-positive service members with assault is not a new course of action for the military. A handful of cases have been brought before court martial that made their way into the national press. In all the cases, including Zachary’s, there have been no instances of HIV being transmitted from one person to the other. “Assault” refers to exposure to the virus, whether it was transmitted or not.

In 2012, former Army Lieut. Col. Kenneth Pinkela was charged under Uniform Code of Military Justice rules with aggravated sexual assault and served time in prison for exposing a younger soldier to the virus, despite medical testimony saying it was impossible for Pinkela to transmit the virus because of his undetectable status and that anal sex had never happened.

In 2014, Air Force Sgt. David Gutierrez was also charged with aggravated assault for exposing multiple people to HIV, though the prosecution admitted that no transmission had actually happened. Both were also charged with violating their safe sex orders.

Safe sex orders have been used since the 1990’s, when HIV ran rampant across gay communities and information on how the virus was transmitted was still widely misunderstood. At the time the orders were first drafted in 1994, the military knew primarily two things: HIV was transmittable by bodily fluids, and it was happening predominantly among gay men.

The original orders forbade the sharing of toothbrushes or razors, and stated that service members who test positive should reconsider children because of the transmission of the virus from mother to child.

But we’ve known for decades now that HIV’s transmission via the bloodstream needs to be direct. The nick of a razor or a dirty toothbrush can’t do that (although the CDC recommends not sharing these items due to the potential for blood contamination). Research also shows that women who are HIV-positive can, indeed, have HIV-negative children so long as proper medication is used.

Despite the medical advances and general understandings we’ve gathered over the past thirty years, only one military branch—the Navy—has updated its safe sex orders. The other branches of the military still use the 1994 form. The Navy and Marine guidelines, though, still suggest avoiding childbirth.

“It’s your right to procreate,” says Catherine Hanssens, executive director of the Center for HIV Law and Policy, in New York City. “To effectively say to someone that because you’re HIV-positive, even if you inform your partner, you shouldn’t conceive a child raises constitutional issues.”

When asked earlier this year why the current safe sex orders continue to list off risks that can’t transmit the virus, Department of Defense officials responded that, “It is true that the risk is negligible if… the HIV-infected partner has an undetectable HIV viral load. However, it cannot be said that the risk is truly zero percent.”

The orders also require those diagnosed to tell sexual partners and medical personnel of their status before contact with any body fluids, including saliva.

If someone does not follow any one of the guidelines outlined in the order, they can be punished under the Uniform Code of Military Justice (UCMJ) and face jail time or a discharge, or both.

Only one military branch—the Navy—has updated its safe sex orders. The other branches of the military still use the 1994 form. The Navy and Marine guidelines, though, still suggest avoiding childbirth.

Earlier this year, officials at the Department of Defense emailed a statement to this reporter that “the Army does not use [safe sex orders] to support adverse action punishable under UCMJ.”

Perkowski, OutServe-SLDN’s legal director, scoffed at the Department of Defense’s comment.

“That’s preposterous,” he said, “having just finished a court martial involving a UCMJ felony charge arising from a safe sex order.”

In the past six months, Perkowski has been involved in at least two cases where a soldier has been either put into a court martial or has gone through the process of being separated (discharged) for failing to abide by their safe sex order. The Center for HIV Law and Policy has also seen a number of cases in the military rising from a failure to abide by a safe sex order dating back to 2008.

A NATIONAL PROBLEM

It’s unclear how many service members have been punished for not abiding by their safe sex orders, but the criminalization of HIV is not unique to the military. Thirty-two states have similar laws that punish and imprison people who have HIV, even if no transmission occurred.

Between January and July 2017, the Center for HIV Law and Policy counted 24 news reports of people being charged with various criminal charges for exposing HIV to a victim via biting. Bites from people with HIV are considered a “negligible” risk factor for transmission, according to the CDC.

This year, California Rep. Barbara Lee and Florida Rep. Ileana Ros-Lehtinen again introduced a bill that would end criminalization of HIV. The bill has been reintroduced every year since 2011 without passing.

Rep. Lee also spoke on the issue recently at a Global Citizen event in New York and said in a statement that, “HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred. Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV.”

The U.S. is second only to Russia in HIV prosecutions, with at least 104 cases brought forward between 2013 and 2015, primarily in America’s heartland states, according to a report released by the HIV Justice Network.

And the length of time for those prosecuted for an HIV-related crime is significantly harsh, with prison times stretching into years. The current tide of criminalization might see a swell of interest since the recent re-emergence of news on college wrestler Michael Johnson, aka “Tiger Mandingo.” Johnson was originally sentenced in 2015 to 30.5 years in prison for knowingly transmitting or exposing HIV to five sexual partners and is now pleading no contest in order to see freedom within the next two years, BuzzFeed reported.

“When you think of it, the sentence does not fit the crime. People have murdered and been sentenced for less time in prison,” says Joel Goldman, the executive director for the Elizabeth Taylor AIDS Foundation. “We really need the public to be aware. There’s so much more that needs to be done, and what is effective is really just telling the story of HIV criminalization.”

PrEP FOR A FEW

Travis Hernandez, a former sergeant in the Army, has been on the drug Truvada for about two years now. While stationed at Fort Bragg, he started using the once-a-day blue pill when he learned that the drug could prevent HIV transmission by nearly 100 percent.

He didn’t learn about the drug from any military health officials, though. He got the information from a casual sex partner.

“A guy I was in the Army with and having sex with told me about it, and I was sexually active so it made sense for me to try it,” Hernandez said, also saying he didn’t have any problems getting the drug while enlisted.

But that’s not everyone’s story.

The military gives access to Truvada, which is the drug used for PrEP, through its healthcare provider TriCare, but only for certain individuals. Different military branches have their own set of rules for who can get access to the drug.

“The military likes to set their own rules, even if it doesn’t always make sense,” says NMAC’s Matthew Rose. “The Army thinks they know what’s best for the Army, and Marines think they know what’s best for the Marines. But they all have different medical requirements that shouldn’t have any dissimilarities.”

Emails between NMAC and Military Health officials that were obtained by this reporter confirmed that there are different protocols for prescribing Truvada between the service branches and its members without any specific reason.

“Navy pilots, for example, can take Truvada while on the flight line, but Air Force pilots cannot while they are on the flight line,” says Seefried, from OutServe. “These military branches have different chains of command, so they have different policies that all agree on nothing. It’s just disjointed, and not grounded in science.”

Military Health said in a statement that they are conducting studies on the effectiveness of PrEP in certain situations, such as while on flight status or sea duty, and are also looking into barriers service members face with access to care across the military branches. Among those barriers, officials pointed out that not every military hospital has infectious disease specialists who would be in charge of prescribing the drug.

Truvada does not require a prescription from an infectious disease doctor, though. And the different policies, Seefried says, show the lack of scientific competence within the Department of Defense and the policies it creates.

According to a source inside Military Health familiar with the problem, what happens on the research and medical arm of the military doesn’t necessarily inform the policy arm of the military.

Advocates point to the 2014 Gutierrez case, where the court’s judges ruled that military members could not be charged with aggravated felony assault if a person is undetectable and the risk of contracting the disease is negligible.

“It’s very interesting that you have all these medical experts serving in the military and know about this, and yet the people who came to the conclusion that the risk was insignificant was a court of law—a bunch of judges,” said Allison Nichol, a senior legal and policy advisor for the Sero Project, an HIV non-profit. “It’s pretty astonishing.”

Despite the Gutierrez ruling, a lower felony assault charge can still be executed against service members if those who test positive don’t properly disclose, as instructed on their safe sex orders. The assault charge assumes that if someone does not know of the other person’s status, full consent of a sexual act can’t be confirmed.

Which is exactly what got Zachary into the position he was in a few months ago when facing court martial for his assault charge—despite his undetectable status—and was found guilty for not abiding by his safe sex order.

The loss is proof for lawyers who work on behalf of service members living with HIV that the military still has miles to go when it comes to equal treatment for HIV-positive and gay service members.

“The military for people with HIV is not safe right now, and it’s because of these safe sex orders,” said Perkowski. “There’s this combination of knee-jerk application of rules and regulations along with LGBT bias and HIV bias which is based on a lack of understanding of HIV science.”

Despite the experience of the court martial, Zachary still loves the armed forces.

“I don’t want to leave [my job]. I get to travel the world, do great things and help people,” he said. “I just think there needs to be a change.”

Joseph Darius Jaafari is a writer and documentary filmmaker based out of Brooklyn, NY. His work on military and veteran health can be seen in VICE, The Atlantic, Rolling Stone, and Quartz. He is also a guest lecturer on military and sex at the University of Chicago’s School of Professional Psychology in Washington, D.C. He can be reached via his website josephdariusjaafari.com or Twitter @josephjaafari.