[Update]US: Probation sentence in Arkansas’ HIV criminalisation case after undetectable viral load is taken into consideration

SX, who was charged with nondisclosure of his HIV status to a former sexual partner, was given a surprise sentence of five years probation and a $750 fine finalized in Little Rock, Arkansas on Feb. 19. X was initially facing a felony conviction with the possibility of 10 to 12 years in prison and a requirement that he register as a sex offender upon his release. We last reported on X’s story in September 2018.

“Honestly, I’m grateful, but I still have a burden with probation and its restrictions and financial obligations,” said X about the sentence.

X’s defense lawyer, Cheryl K. Maples, said that the case largely rested on the fact that X was documented as having an undetectable viral load and could not have transmitted the virus to the accuser. The prosecutor finally was convinced in the second hearing.

“He finally heard me,” Maples said, speaking about Grayson Hinojosa, deputy prosecutor with Pulaski County, Arkansas. “He finally got that S could not have exposed this young man to HIV because he was undetectable.”

The statute that was employed in X’s earlier no-contest plea is rarely used, according to Maples. It allows for people without any other criminal records to settle their case with a guilty or no-contest plea, accept at least one year’s probation and no more than a $3,500 fine. They will continue to have no further criminal record.

Interestingly, the law carves out a provision that bans defendants who have been charged with “exposing another person to the human immunodeficiency virus.” But with X being virally suppressed, the exposure clause was moot.

Maples sees an opportunity to help others like X. She is preparing a case for the United States District Court in Western Arkansas to challenge the HIV criminalization law that initially ensnared him. “I believe the law [that criminalizes people with HIV] is unconstitutional,” she said.

Change is spreading nationally, slowly but surely, due to heavy advocacy work by community advocates, state groups, and national organizations including the Center for HIV Law and Policy, Lambda Legal, Prevention Access Campaign, and SERO Project. While Arkansas still has specific laws criminalizing people living with HIV for nondisclosure, there are several states that have reformed their laws in the past few years, most recently California, Colorado, and North Carolina.

As for X, he says that although he is happy about the final ruling, the case has taken a toll.

“I’m still looking for a better stable job,” he said. “I was terminated from my job at the hospital [where I was employed] for over three years. My work performance went down since I’ve been going through this ordeal, and it affected me mentally and led to my dismissal. I didn’t work for three months, but was applying and having interviews, and started working on Jan. 7.”

As for the future, X said that despite the hardships, this experience has encouraged him to want to help others in similar scenarios.

“I would like be in a position where I could work while getting paid advocating and educating on HIV and criminalization, and maybe write a book about my experiences,” he said. “I still will continue to advance in my woodcarving and photography and other creative passions. I just want to be a genuine example to those who are like me that you can overcome adversity.”

Kenyon Farrow is the senior editor of TheBody.com and TheBodyPRO.com.

The early interactions between SX and Jamal “Doe” (a pseudonym) might sound familiar to many gay men across the United States. In separate interviews with TheBody, the Little Rock residents described how they exchanged messages on the hook-up app Jack’d in October 2015, then met at X’s apartment for a one-night stand.

“He messaged me and was like, ‘Hey, what’s up, do you want to come over?'” said Doe, 21, who was an 18-year-old freshman studying sociology at the University of Central Arkansas in 2015. “After we had sex, we talked for a few moments, and then I left.”

X was 22 years old at the time of the encounter and has similar memories. “There was no trying to vibe or anything, we just got to it. Once we were done, he left and that was it.”

The young men didn’t maintain contact after that night, but they reconnected about a year and a half later, at which time they learned each other’s names and a friendship developed.

“We started hanging out, not trying to pursue a relationship, not anything sexual, just genuinely hanging out,” X, now 25, said. “We went out to a couple of movies together, maybe ate out once or twice, and he hung out over my house.”

Doe fondly recalled his growing bond with X. “S was someone I considered a friend because we spent so much time together,” he said.

However, the next interaction between the two men is expected to be in a Pulaski County courtroom in early October, when Doe is scheduled to testify on behalf of the state of Arkansas as it attempts to send X to jail for up to 30 years, a sentence equivalent to that for negligent homicide.

“That’s Not Me, I Wouldn’t Do That”

On Aug. 9, 2017, X received a call from a Little Rock detective asking him to come in for questioning related to allegations that he had sex with someone without first disclosing that he was HIV positive. Alarmed and convinced he would be arrested if he went to the police station, X reached out to Cheryl Maples, the mother of a friend and an attorney who has worked on LGBT issues in Arkansas, including challenging the state’s ban on same-sex marriage. The next morning, around the time X would usually be getting ready for his job as an operator at a hospital appointment center, police arrived at his apartment with a warrant and took him into custody.

Doe was among the 314 new HIV diagnoses in Arkansas in 2016, the most recent year of available data. (Arkansas ranks 30th among states in HIV prevalence.) According to an Arkansas law enacted in 1989, “[a] person commits the offense of exposing another person to [HIV] if the person knows he or she has tested positive for [HIV] and exposes another person to [HIV] infection through … sexual penetration with another person without first having informed the other person of the presence of [HIV].” Johnson is one of about a dozen Little Rock residents to be charged under this HIV disclosure law within the last five years, and if found guilty of the Class A felony at his Oct. 4 trial, he faces between six and 30 years in prison.

“That was my first time ever being in the legal system,” X recalled about the week he spent in the Pulaski County jail in August 2017. “When I got out, I experienced every emotion you could feel, good and bad: [I felt] fear; I try to make myself feel happy; [I was also] sad, very angry, depressed, you know, anxious, calm — basically I had no choice but to feel everything.

“The next day, my mug shot was plastered all over social media,” he said. “Of course, with the charges, with people not wanting to dig into the story to find out what’s going on, they just saw what was in front of them and left evil, nasty comments. They see the mug shot and what the charges are, and they automatically think that I’m just passing it around, and it makes me so angry, because y’all don’t know the situation or anything. Y’all just going based off what you see and don’t even know the details of this story. Thankfully, people who actually knew me, like family and friends, knew that’s not me; I wouldn’t do that.”

The initial meeting between X and Doe was too brief and unremarkable for X to remember the details three years later, and he is unsure whether the two discussed HIV status or safer sex prior to their encounter.

“Honestly, no, I do not [remember],” X said. “That was three years ago, just a one-time hook-up. All those important details that are important when you’re having sex with someone, I don’t remember them.”

Still, X is convinced he did not pass the virus to Doe, and court records show that within a week of their encounter, X’s viral load was undetectable. As part of an emerging scientific consensus about how HIV is spread, the U.S. Centers for Disease Control and Prevention (CDC) confirmed last fall that HIV-positive individuals who “maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner.”

“SX could not have passed on and exposed anyone to this virus due to his medical condition; therefore, he cannot be guilty of this particular statute,” said Maples, X’s attorney. “S deserves his fair day in court, but there’s a law the state of Arkansas has, and he may never get it.”

Arkansas is one of 34 states that have specific criminal laws on HIV-disclosure, and there is growing advocacy to have these laws — some of which criminalize the spit and urine of HIV-positive individuals, despite neither of these bodily fluids being a carrier for the disease — repealed or amended to catch up to modern science.

“They’re really the norm rather than the exception,” said Kate Boulton, a staff attorney at the Center for HIV Law and Policy, a national group that tracks legal developments and advocates for reforming of HIV criminal laws. “Many of the states passed these laws in the early days of the epidemic and have not really revisited them since,” she said.

While advocates have helped amend these laws in states such as California, Iowa, Colorado, and North Carolina, neither Arkansas legislators nor the legal arena seems receptive to arguments that the laws are unscientific. Prosecutors have argued in legal pleadings that X and other HIV-positive individuals remain “a public health threat,” and claimed the CDC has “walked back” its assertion that being undetectable equals being untransmittable.

“The CDC warned that ‘these data can’t statistically rule out the possibility that the true risk is not zero,'” Michael Cantrell, assistant solicitor general in the Arkansas attorney general’s office, wrote in response to a motion to dismiss filed by Maples. However, the same CDC statement Cantrell cited notes: “The statement … reflects the fact that there have been no linked infections observed in studies among thousands of sexually active HIV-discordant couples engaging in female-male and male-male sex without a condom or [pre-exposure prophylaxis] while the HIV-positive person is virally suppressed.”

The prosecutors’ strategy and language, specifically labeling X a “public health threat,” have X supporters worried as he readies for a jury trial.

“That kind of characterization is unfounded and needs to be addressed,” said Cornelius Mabin, who has known Johnson for about a decade and started a fundraising effort for X’s legal defense. “The way he was being characterized and the way this is being framed, to me, it ignored medical facts about the current realities of HIV transmission and care.”

Mabin is also the founder and CEO of the non-profit Arkansas RAPPS, and based on his longtime work in HIV/AIDS advocacy, he fears the average juror’s understanding of the disease is as outdated as the state’s disclosure law.

“[The average juror is] certainly not able to discern undetectable and/or virally suppressed, probably not knowing what those terms are and never hearing those terms,” Mabin said. “Also, just the general stigma, homophobia, and fear that continue to exist. Even when I’m out lecturing or doing workshops, I continue to hear so much misinformation, especially from people who I would think would have more aptitude, and I would think would be more learned about it — and that would include some clinicians.”

During a June hearing on Maples’s motion to dismiss, Nathaniel Smith, M.D., M.P.H., director of the Arkansas Department of Public Health and SX’s personal physician, testified that X was undetectable during his sexual encounter with Doe, and he offered the mounting evidence that someone who is undetectable cannot pass the virus along to others. Pulaski County Circuit Judge Leon Johnson was unconvinced.

“The state really did not put on any evidence at all at that hearing, and we had real solid testimony,” Maples said. “The prosecutors got the words out of the mouth of the doctor that even though there’s no cases showing you can catch it from someone who is undetectable, there is this teeny-tiny possibility, and the judge grabbed that and said there’s a possibility, and ruled against us.”

“I Was Basically Dying”

Despite the plethora of scientific knowledge on the issue, the notion that there remains a miniscule possibility of someone who is undetectable passing the disease on to others is considered significant enough for X’s accuser to pursue charges against X.

“Here’s the thing with being undetectable: It lowers the chance to transmit the disease; it doesn’t just put it at zero,” Doe said. “I even talked to my doctor about it, and they’re like, it’s not a definite that you’re not going to transmit it to someone else.”

Whereas X does not remember the details of any conversation they had prior to their hook-up, Doe said he specifically asked X whether he had any sexually transmitted diseases before they had sex.

“I asked him, ‘Hey, do you have anything?’ — the usual question that you would ask somebody — or if he had a condom,” Doe said. “What S told me is that he didn’t use condoms. I didn’t really think too much that it was a possibility that he had something, but kind of taking his word for it, which probably was not the best thing to do.”

A month after his encounter with X, Doe was back at school when he began to get ill. “A lot of my friends noticed I was losing a lot of weight,” Doe said. “I started having night sweats; I started having joint pain in my right knee; I wasn’t eating; I would lose my breath quick, and my heart would start pounding.”

At the urging of his parents, Doe went to his school’s health clinic and learned he was HIV positive. “It was alarming since I never knew too much about HIV, and the first thought was, ‘I am going to die soon,'” he said. “What was the point of living anymore since I had HIV? What are people going to think about me now that I have this? Of course, I would have to tell people in my future relationships that I have this disease, and what if I’m not accepted or what if I’m going to be alone?”

Doe was forced to medically withdraw from school, struggled with depression, and believes he was weeks away from death before getting on treatment.

“My CD4 was so low that they actually considered me to have AIDS until my viral load went down and my CD4 went up,” Doe said.

While not commenting on the specifics of this case, Smith with the Arkansas Department of Public Health told TheBody in an emailed statement, “It would be very unusual for someone to progress to AIDS after just one month of HIV infection.” He added: “Sometimes the CD4 count will dip down shortly after infection and then come back up. If a CD4 count was done during that dip, it might be less than 200 and meet the case definition for AIDS.”

This, together with the fact that X was undetectable just a week before their encounter, gives X’s defense lawyer reason to question whether X could have possibly been the person from whom Doe contracted HIV.

Doe believes he endured unnecessary suffering because someone did not disclose his HIV-positive status. “It was really, really bad, and I was basically dying,” Doe said. “I had mono on top of a [urinary tract infection], and it was awful. If you’re not given a choice or a chance, or at least are told, ‘Hey, I have X, Y, and Z, are you still interested?’ or ‘This is what we need to do to so you can protect yourself.’ If you’re just going to give everybody HIV, people are going to die and people are going to get sick. Not a lot of people show symptoms as fast as I did.”

Once Doe started medication and his health recovered, he reinstalled Jack’d and received a message from X. Doe said he continued to accept X’s initial denial of having HIV, so it didn’t occur to him that X could have been the person who infected him.

“I rarely had unprotected sex with people, and I would ask them,” said Doe, who added that he had sex without a condom with only one person other than X. “When I found out I had HIV, I was told that I needed to go to the health department and disclose to them who I had sex with, or who I had unprotected sex with. So I was like, it’s one of these two people, which one is it? But S was, he was the one where he came back, and we had contact.”

When asked in a deposition for the name of the second individual that he had condomless sex with, Doe answered: “I have no idea. It was the same situation off of Jack’d. Before I even knew who S was [by reconnecting with him], I didn’t even really know his name or anything.”

About a month into their friendship, Doe said he again asked X whether he was HIV positive, and at that time, X admitted he was and had been undetectable during their sexual encounter.

“He asked me if I was mad, and I told him, no; I just told him that I was hurt,” Doe said. “If you knew that you had something, it would have helped a lot if you just told me. You didn’t have to lie to me. I’m not the type of person that would judge somebody based off their status; I would just make sure there was precaution taken. So, I didn’t really get my chance. It’s like my choice was taken from me.”

A few days after their conversation, Doe visited a Little Rock police department to file a complaint against X, and a few days later, detectives interviewed Doe.

“Since he told me he doesn’t usually use a condom, and he failed to disclose to me, I was just like, I don’t want this to happen to somebody else,” Doe said. “The only reason I went to the police [was] not to put S in jail or to make sure that, ‘You need to pay for what you did to me.’ No. I just don’t want him to do it to someone else.”

Doe wasn’t aware of the results of his conversations with police “until I was at work one day and people were talking about it, and I didn’t know who they were talking about until I saw [X’s] picture.”

“There Has to Be Some Other Option”

Doe believes X’s lack of disclosure denied him the choice of protecting himself, but X and many advocates believe the HIV disclosure law makes HIV-positive individuals criminally liable for other people’s behavior.

“I believe the responsibility shouldn’t be put all on me as the person who is positive,” X said. “For one, I’m not in control of another person’s body; I’m not in charge of you or make you lay down with me. Anyone has the right to decline. Whether you’re positive or not, man or woman, gay or straight or transgender, white or black, you have the right to ask to protect yourself.”

In addition to seeking to exonerate X, Maples said she hopes to abolish the state’s HIV disclosure law, which would likely require a U.S. Supreme Court ruling given the conservative makeup of the Arkansas Supreme Court.

“The statute itself is unconstitutional,” Maples said. “It’s the only law in Arkansas that punishes someone for having a medical condition. The language is understandable for the time that the statute was enacted, but that’s no longer the status, and the laws have not kept up with medical science, and it desperately needs to be changed.”

Doe is opposed to eliminating HIV disclosure laws, but he believes they should be amended to include nuanced “criteria” related to intent and evidence.

“If they’re going to have laws that put people in jail for not disclosing, there should be some type of criteria for that,” Doe said. “I think it should be based off more than just somebody’s word; there has to be factual evidence to put somebody in jail for transmitting the disease.”

When discussing what justice would look like at the Oct. 4 trial, Doe’s voice was weighted with uncertainty.

“Even with the prosecuting attorney, they would ask me a bunch of questions, and I would just tell them that I don’t hate S; I don’t dislike him; I just wish he would have gave me my choice,” Doe said. “A lot of the time, whenever somebody is exposed to HIV, it’s seen as the person that is transmitting is trying to be spiteful. Since I had that friendship with S, and I actually got to know him, I don’t believe that he is a spiteful person. Of course, the [prosecutors] are going to have what they believe is right. Honestly, I would be satisfied if there were a way just to make sure this didn’t happen to somebody else. I’m not the type of person that is spiteful or that wants to see somebody’s life completely ruined.”

While he didn’t express regret about contacting police, Doe has detached himself from the litigation beyond being subpoenaed as a witness for the prosecution, and it’s clear he feels the situation is out of his hands.

“The case is not my case,” Doe said. “It is, you know, the state against him — it’s not me.” He added: “Whenever somebody is going to court, and it’s the state against him, my opinion as far as everything goes doesn’t matter too much. There has to be something else than giving him 30 years. There has to be some other option. I understand that he made a mistake as far as not disclosing and not doing what he’s supposed to do, but I do believe there should be another option.”

Born in the mid-’90s, X and Doe are both part of the first generation of gay men to come of age after the advent of effective medications for HIV/AIDS, which transformed the disease from a death sentence that created a sense of urgency to a chronic illness that most of society no longer discusses. The type of encounter they had takes place hundreds of times per day on Jack’d and other hook-up apps, and Mabin worries that many of the Little Rock residents he serves are oblivious to how a one-night stand could lead to more than a quarter century in prison.

“After this happened to S, I went on a heightened [outreach effort], where I did workshops with HIV providers in the area,” Mabin said. “After each workshop that I did, I determined that most of the participants in those classes — who are living with HIV — had no clue about this law, and did not know how it could impact them, and that alarmed me.”

Ryan Lee is a writer based in Atlanta and a columnist for the Georgia Voice newspaper, which focuses on LGBT issues in the South.