Scales of injustice

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08 Sep 2015

Upon diagnosis, Michael Johnson was compelled by law to sign a form acknowledging he was living with HIV. As Christopher Kelly reports, two years later, that signature would seal his fate.

On 10 October 2013, African-American student Michael L. Johnson was hauled out of class and marched from Lindenwood University, in St Charles, Missouri, in handcuffs. Johnson, then 21, had been arrested for failing to disclose he was HIV-positive to sexual partners. In July, Johnson — a gay high-school wrestling champion — was sentenced to 30.5 years’ jail. To put that in context, consider this: in 2014, a Missouri man responsible for the deaths of two people while drunk-driving was sentenced to seven years.

The criminal statute that Johnson was convicted of violating was originally passed in 1988, at a time when HIV was considered a death sentence. These days, HIV is a chronic, but manageable condition. The drugs to treat it have become so effective that a person can become virtually un-infectious. Despite this, Johnson was convicted of a Class A felony.

HIV activists along with members of the medical and legal community have expressed outrage at the harsh sentence meted out to Johnson — a sentence normally reserved for murderers. “Punishing Michael Johnson as if he is a murderer because state officials have failed to address a severely outdated, irrational criminal law is not only fundamentally unfair, it is barbaric,” said Mayo Schreiber, of the US Centre for HIV Law and Policy (CHLP).

Johnson’s supporters complain that the prosecution and the media portrayed him as a sexual predator whose “HIV semen” placed the community at risk. “He did not seduce these people,” said the executive director of CHLP, Catherine Hanssens. “He was sought out as a sex partner. “

The prosecution is also accused of deliberately exaggerating fears about HIV. “Health officials stood by silently,” said Lauren Fanning, also from the CHLP, “while the prosecutor used ignorance to persuade a jury that Michael Johnson’s HIV is effectively a deadly weapon.”

Time and again during the five-day trial the prosecution emphasised that Johnson engaged in anal sex without wearing a condom, completely ignoring the fact that neither had his partners. Which begs the question: why is Johnson solely to blame for having mutually consensual unprotected sex?

It also emerged that the man whom Johnson was convicted of recklessly infecting — Dylan King Lemons — continued to engage in consensual unprotected sex with Johnson, even though he believed Johnson had transmitted the virus to him. Another sexual partner of Johnson’s admitted he regularly had bareback sex with “people he barely knew”.

None of the men testifying against Johnson were able to prove he was the source of their infection. Nor were they able to prove Johnson’s non-disclosure (Johnson testified he had disclosed his HIV status before engaging in sex with his accusers). It was a case of he said, he said, and — after deliberating for just two and a half hours — the mainly white jury (only one member was black) sided with Johnson’s six accusers (four of whom were white).

According to the Centres for Disease Control (CDC), laws "explicitly focused on persons living with HIV" had been established in 33 US states by 2011. Of those, 24 states criminalise non-disclosure, and 25 criminalise behaviours that pose low or negligible risk for HIV transmission.

Last year, the CDC released the following statement: “The majority of laws were passed before studies showed that antiretroviral therapy reduces HIV transmission risk and most laws do not account for HIV prevention measures that reduce transmission risk, such as condom use.” Indeed, under Missouri law wearing a condom is not considered a legal defence.

The CHLP estimates that more than 200 cases criminalising people living with HIV have been prosecuted since 2008. Such convictions shame and stigmatise people living with HIV — further deterring people from disclosing their positive status. They also serve to deter people from getting tested.

Dr Jeffrey Birnbaum is an expert on HIV among adolescents. “HIV criminal laws have no positive impact on the spread of HIV,” he said. “Sentencing people living with HIV to prison for having sex will, based on decades of HIV clinical experience, only drive people away from health centres where they can learn their HIV status and get the medical care they need.”

Hanssens says Johnson’s conviction reinforces both an 'ignorance is bliss' approach to sexual health and personal responsibility, and public hysteria and misconceptions about HIV. "For the conviction to be fair, you have to believe that Mr Johnson's willing sexual partners are blameless victims who have every right to rely on a potential sex partner's statements about his health status as the sole basis for deciding whether sex poses any risks,” she said. “You also have to believe that his actions are the equivalent of murder."

Clearly no-one has died. Indeed, with proper care and treatment, Johnson’s “victims” have every chance of living long and healthy lives. As for Johnson, his hopes of one day wrestling in the Olympics lie in ruins. Instead, he gets to spend the next three decades wrestling with the injustice of it all.

"You didn't think the system would be that bad where it would demonise you for being positive," Johnson is quoted as saying. "There are two things in my case people hate: they hate men who are gay, and I also think the thing that people don't understand and hate is HIV."