Missouri Prosecution Perpetuates Cycle of Ignorance, Fear and Injustice

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May 16, 2015

This week, seven gay or bisexual men were dragged through an ordeal in a Missouri courtroom—exposing to complete strangers the private details of their sex lives and attempting to justify the decisions they made to engage in unsafe sex with each other. But only one of them was on trial with his liberty at stake: the one who learned of his HIV-positive status first. On Thursday, Michael Johnson was found guilty of four counts of recklessly exposing his sexual partners to HIV and one count of reckless exposure with transmission. His sentencing, at which he will be facing 30-90 years of incarceration, will take place in mid-July.
This case is a tragedy at so many levels it is difficult to know where to focus one's attention, but the antiquated Missouri law under which this prosecution took place seems like an important place to start. Like so many of the HIV-specific criminal laws that sprang up in the '80s and '90s, it is woefully out of date and rooted in ignorance and outsized fears about this one particular medical condition. The law, which requires no actual intent to harm, treats all sexual activities as if they involved the same risk of HIV transmission. In reality, the risks vary widely, with some sex acts involving no or almost no risk. The law also ignores the various steps people can take to protect themselves and their partners from HIV and other sexually transmitted infections. In actuality, it renders people living with HIV criminals if they have a sexual relationship and are unable to prove disclosure. And it imposes a sentence completely disproportionate to the harm involved. Provision of appropriate care and treatment today renders HIV a chronic, manageable condition that hardly affects life expectancy at all, but Missouri law treats its transmission as tantamount to murder.
Furthermore, the law sends all the wrong public health messages. If you want to remain sexually active, the one sure-fire way to avoid prosecution is to not get tested and learn your status. And if you already know you are HIV-positive, then it may seem wise to some not to tell anyone about it ever (including doctors or other healthcare professionals) or to have those tell-tale prescription bottles in your medicine cabinet.

Are these the messages Missouri wants to send its citizens who are HIV-positive? Certainly not. And what message is this law sending those who are currently HIV-negative? “Oh, don't worry, you can engage in unprotected sex with people you barely know, because if they are HIV-positive, they have to tell you.” In addition to undermining important principles of self-determination and personal responsibility, how could that message possibly fail to lull people into a false sense of security and increase transmission from the 1-in-6 people living with HIV who do not know their status?
In Michael Johnson's case, all of the ignorance, misconceptions, stigma and abject fear of HIV that this law embodies were placed before jurors presumably with their own ill-conceived notions and prejudices about HIV and the people living with it. Hardly a jury of this young, gay or bisexual, Black man’s peers, the nearly all-white and presumably all heterosexual jurors—several of whom expressed their belief during jury selection that homosexuality is a sin—were then subjected to a subculture and barrage of sexual descriptions and images that were completely outside their realm of experience and likely curled their toes. With all of these things working against him, regardless of what actually transpired between him and his accusers, how did Michael Johnson stand a chance?
But there is a chance to further educate the judge in this case before he imposes the sentence. It may have been impossible to teach 12 jurors in less than two days, but bringing one well-read individual into this century with respect to HIV over the next two months is not. After that, if they have any concern about actually protecting the health and well-being of the people of Missouri, the state’s prosecutors must exercise their discretion and stop pursuing convictions under these laws until they have been modernized (as Lambda Legal called for in July of last year). And our communities must redouble our efforts to see these laws changed, in Missouri and elsewhere across the United States.
We can't stop pushing until these laws address only conduct motivated by the intent to harm another and clemency is given to all of those, like Michael Johnson, who are being convicted without proof that malicious intent drove their actions.

Criminal Justice, HIV