Criminalizing HIV in MO (2015)
Published in The St. Louis American on Wednesday, May 6, 2015 -
A former college student and wrestler who was arrested in 2013 for not disclosing his HIV status to his sexual partners will go to trial on Monday, May 11.
Michael Johnson, 23, is charged with one count of attempting to “recklessly infect another with HIV” and four counts of attempting to “recklessly risk infection of another with HIV,” all felonies in the state of Missouri. Johnson was a student and star wrestler at Lindenwood University when he was arrested in October 2013. He is currently in the St. Charles County Jail and faces life in prison.
Johnson is being represented by St. Charles County public defender Heather Donovan, who declined to comment on the case.
Advocates for those living with HIV are calling into question the Missouri law that Johnson is being charged under – referring to it as an “HIV criminalization law.”
“This is a public health issue – not a criminal issue,” said Andrea Sears, communications consultant for the Center for HIV Law & Policy in New York. “Any sexually-active person living with HIV living in Missouri could be in Johnson’s position – in jail, his life completely derailed if not destroyed.”
Under Missouri law, if individuals with HIV are accused of not disclosing their status to their sexual partners, their only defense is to be able to prove disclosure. Verbal consent is often how people “negotiate sex,” but verbal disclosure is hard to prove, said Erise Williams, president and CEO of Williams and Associates, Inc., a nonprofit community-based organization in St. Louis that addresses minority health disparities and offers HIV screenings and resources.
It is not typical practice anywhere for sexual partners to sign documents or get audio or video recording of disclosure before having sex, he said.
“The burden of proof is on the person with HIV,” Williams said. “We shouldn’t be criminalizing anyone because they have a disease.”
Williams also said the law makes it more difficult for his organization to do their work because criminalizing HIV discourages people from getting tested. As long as individuals don’t know they have HIV, they can’t be prosecuted. But once they get tested, they could end up in jail for having sex – even if they are having protected sex and receiving clinical treatment, which greatly lowers the risk of transmission, he said.
Williams said the law – and stigma that it reinforces in the African-American community – especially hinders their program called Blacks Assisting Blacks Against AIDS.
“It encourages the epidemic,” he said. “HIV criminalization laws ignore the research around how people get infected. They are at odds with public health strategy to address HIV. With the treatment we have now, they can live for a long time. Treatment is prevention. That helps decrease infection rates in communities.”
According to police reports, Johnson tested positive for HIV on January 7, 2013. The initial alleged incident that precipitated his arrest occurred on January 26, 2013 in Johnson’s dorm room.
The incident was reported to police on May 29, 2013. Police first interviewed Johnson on October 7, 2013, and he was arrested three days later.
Johnson was charged with two Class A felonies and four Class B felonies, based on statements by six witnesses, two of whom have tested positive for HIV. At least three of the six complaining witnesses are white and two are African-American. So far Johnson has refused to accept any plea bargain. Bail was set at $100,000 cash.
Under Missouri law, a Class A felony alone is punishable by a minimum of 10 years in prison and a maximum of 30 years or life in prison.
Akil Patterson, a wrestling fan who befriended Johnson, said Johnson is a good person, man of faith and hard worker. He has exchanged letters with Johnson from jail and said it’s clear from their correspondences that Johnson has a learning disability.
This could be critical, because on January 7, 2013, Johnson signed the standard Missouri form that explains to individuals who have tested positive that it is a felony not to disclose their HIV status.
“If you look in the document, it’s written in legal format,” Patterson said. “I have two degrees, and I don’t understand it.”
Patterson said there are many other sexually transmitted diseases, including syphilis, that do not have specific laws surrounding them. He believes lawmakers singled out HIV because it’s associated with homosexuality and people of color. And he fears that Johnson will not get a fair trial in majority-white St. Charles County.
He urged the court to look at the root of the issue.
“Two consulting adults had sex, and that happened,” he said. “If you have unprotected sex, there are consequences.”