Canadian study provides damning evidence of the “dramatic overrepresentation” of Black men in HIV criminalisation news reporting

A new study published this month by a group of leading Canadian social science academics provides damning evidence of the extraordinary over-representation of Black and Black immigrant male defendants in news reporting of Canadian HIV criminalisation cases.

Eric Mykhalovskiy and Colin Hastings from York University, Toronto; Chris Sanders from Lakehead University, Thunder Bay; and Laura Bisaillon from the University of Toronto Scarborough, analysed 1680 English-language articles published between 1989 and 2015.

They found that Black men comprised 21% of those charged with HIV criminalisation offences – which under Canadian law relates to non-disclosure of known HIV-positive status, usually charged as aggravated sexual assault –  but were the focus of 62% of newspaper articles covering the issue. The pattern was amplified for Black men who were immigrants or refugees who made up 15% of those charged but were the focus of 61% of newspaper stories.

The researchers note:

“The result is a type of popular racial profiling in which HIV non-disclosure is treated as a crime of Black men who are represented as dangerous, hypersexual foreigners who threaten the health and safety of the public and, more broadly, the imagined Canadian nation.”

 

The study is important for more than its quantitative findings, as it also considers the role of the media in the construction of public perception.

The researchers argue that media reporting involves a process of “recontextualization,” which occurs when speech is selected and moved from one place (e.g. a court) and fitted into another for a different purpose (e.g. a media story). In other words, they say, information is “selectively reported and repurposed into news stories”.

Their analysis found that in media reporting of HIV criminalisation cases, ‘whiteness’ became a neutral position. This usually meant that when a person was white their ethnicity or immigration status was rarely, if ever, mentioned.

For Black men living with HIV, however, the researchers found that the reporting was racialised, depicting such men as morally blameworthy and discussing them in terms of their “immigration status, hypersexuality, and other forms of racialised difference”.

Consequently, they argue, Black men living with HIV are depicted in these news reports not only as a threat to individual complainants, but also as a threat to Canadian society.

The researchers also discussed how news media reporting routinely involves forms of writing that silence people facing HIV-related criminal charges. Their experiences are rarely heard which, they summise, is likely due to reporters’ decisions about who to quote, as well as defendants being discouraged by their laywers to publicly comment on their cases.

Consequently, people living with HIV involved in HIV criminalisation cases are only spoken about, and their lives are only known about within the context of crime stories.

The authors hope their analysis will help advocates “to intervene in popular news coverage of HIV non-disclosure”, urging the use of counter-narratives emphasising how HIV non-disclosure, exposure or transmission should be seen as a public health issue and not a criminal justice issue.

They conclude:

The profound silencing of Black immigrant men in newspaper coverage of HIV non-disclosure suggests the need to support strategies that create an affirmative presence in mainstream media for Black men living with HIV.

Source

Eric Mykhalovskiy, Chris Sanders, Colin Hastings & Laura Bisaillon (2020) Explicitly racialised and extraordinarily over-represented: Black immigrant men in 25 years of news reports on HIV non-disclosure criminal cases in Canada, Culture, Health & Sexuality, DOI: 10.1080/13691058.2020.1733095

Further resources

 

UNAIDS “extremely concerned” by new COVID-19 laws that target people living with or vulnerable to HIV

This week, echoing the concerns of the HIV JUSTICE WORLDWIDE Steering Committee, amongst others, UNAIDS issued a strongly worded press release condemning governments for abusing the current state of emergency over the COVID-19 pandemic for overreaching their powers and enacting laws that target people who are living with, or vulnerable, to HIV.

“In times of crisis, emergency powers and agility are crucial; however, they cannot come at the cost of the rights of the most vulnerable,” said Winnie Byanyima, Executive Director of UNAIDS. “Checks and balances that are the cornerstone of the rule of law must be exercised in order to prevent misuse of such powers. If not, we may see a reversal of much of the progress made in human rights, the right to health and the AIDS response.”

Notably, UNAIDS singles out EU member states, Hungary and Poland.

In Hungary, a new bill has been introduced to remove the right of people to change their gender and name on official documents in order to ensure conformity with their gender identity, in clear breach of international human rights to legal recognition of gender identity.

In Poland, a fast-tracked amendment to the criminal law that increases the penalties for HIV exposure, non-disclosure and transmission to at least six months in prison and up to eight years in prison has been passed—a clear contravention of international human rights obligations to remove HIV-specific criminal laws.

In addition, UNAIDS condemns overly zealous policing that is especially targeting key populations already stigmatised, marginalised, and criminalised.

UNAIDS is also concerned by reports from a number of countries of police brutality in enforcing measures, using physical violence and harassment and targeting marginalized groups, including sex workers, people who use drugs and people who are homeless. The use of criminal law and violence to enforce movement restrictions is disproportionate and not evidence-informed. Such tactics have been known to be implemented in a discriminatory manner and have a disproportionate effect on the most vulnerable: people who for whatever reason cannot stay at home, do not have a home or need to work for reasons of survival.

They single out Uganda where “23 people connected with a shelter for providing services for the LGBTI community have been arrested—19 have been charged with a negligent act likely to spread infection or disease. Those 19 are being held in prison without access to a court, legal representation or medication.”

They also highlight Kenya as a model of cjvil society rapid response to human rights concerns following the release of an advisory note “calling for a focus on community engagement and what works for prevention and treatment rather than disproportionate and coercive approaches.”

The statement concludes:

While some rights may be limited during an emergency in order to protect public health and safety, such restrictions must be for a legitimate aim—in this case, to contain the COVID-19 pandemic. They must be proportionate to that aim, necessary, non-arbitrary, evidence-informed and lawful. Each order/law or action by law enforcement must also be reviewable by a court of law. Law enforcement powers must likewise be narrowly defined, proportionate and necessary.

UNAIDS urges all countries to ensure that any emergency laws and powers are limited to a reasonable period of time and renewable only through appropriate parliamentary and participatory processes. Strict limits on the use of police powers must be provided, along with independent oversight of police action and remedies through an accountability mechanism. Restrictions on rights relating to non-discrimination on the basis of HIV status, sexual and reproductive health, freedom of speech and gender identity detailed above do not assist with the COVID-19 response and are therefore not for a legitimate purpose. UNAIDS calls on countries to repeal any laws put in place that cannot be said to be for the legitimate aim of responding to or controlling the COVID-19 pandemic.

UNAIDS recently produced a new guidance document that draws on key lessons from the response to the HIV epidemic: Rights in the time of COVID-19: lessons from HIV for an effective, community-led response.   

US: New report by the Williams Institute finds that Florida’s HIV criminal laws undermine pubic health efforts

Florida’s HIV criminal laws undermine public health efforts

For Immediate Release
March 12, 2020

Media Contact
Rachel Dowd
dowd@law.ucla.edu
(310) 206-8982 (office) | (310) 855-2696 (cell)

The laws deter testing, disclosure, and other HIV prevention strategies

Florida’s HIV criminal laws may undermine the state’s public health efforts by deterring people from seeking HIV testing and treatment, stigmatizing those with HIV, and disproportionately affecting the communities most impacted by HIV, including people of color, women, LGBTQ people, and the formerly incarcerated, according to a new report by the Williams Institute at UCLA School of Law.

HIV criminalization is a term used to describe laws that either criminalize otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. Florida has four HIV-specific criminal laws.

Using data from the Criminal Justice Information Services at the Florida Department of Law Enforcement, researchers found that from 1986 to 2017, there were 266 convictions under Florida’s HIV criminal laws—approximately eight convictions per year.

None of the convictions required intent to transmit HIV as an element of the crime, and none required actual transmission of HIV.

“HIV is treatable, preventable, and harder to transmit than was thought in the early years of the AIDS epidemic when Florida’s HIV criminal laws were passed,” said lead author Brad Sears, the David Sanders Distinguished Scholar of Law and Policy at the Williams Institute. “Enforcement of these laws disproportionately stigmatizes the very communities Florida needs to engage to combat HIV.”

This research was generously funded by a grant from the Elton John AIDS Foundation.

Read the report

South Africa: African migrants face dual challenge of navigating HIV care and social stigma

The social management of HIV: African migrants in South Africa

HIV is the most common chronic illness in South Africa. One in every five is infected and one in every 13 takes antiretroviral drugs daily. Managing HIV medically has become more of a part of normal life.

Amid this public health emergency, some 2.5 million foreign-born African immigrants live in South Africa. They largely come from countries with the highest HIV prevalence rates in the world, such as Lesotho. Yet their access to health care and services is limited, because they are vulnerable in various ways. Though entitled to inclusion and care in South Africa, they may face deportation, xenophobia, exploitation, language barriers, cultural estrangement and social isolation.

In spite of these challenges, migrants do manage HIV medically. But we do not really know how they manage socially in communities where the stigma of the disease affects all dimensions of life. HIV is often referred to today as a “manageable” chronic illness, but it is not just a medical condition. It is also very much a social condition as living with HIV comprises both clinical features of care and experiences of stigma and social angst.

Understanding how migrants manage this social dimension of their condition matters because it shapes the landscapes and outcomes of their care. It directly influences when and where people seek treatment, and how well they adhere to it if they do. This in turn affects critical issues such as drug resistance and prevention of transmission.

In a recent journal article, I unravel complexities of stigma and perceptions of HIV in Mozambican migrant communities. My research exposes layers and shades of stigma across different social networks and locations, which influence how HIV is managed socially. It shows how an individual’s HIV status determines how other community members are regarded and interacted with in daily life.

Perceptual contrasts

Nowhere in South Africa is the migrant population as dense as in inner-city Johannesburg. In their urban enclaves, community members inevitably lead lives entwined with those of people receiving care for HIV, whether aware of their infection or not.

HIV is spoken of here in ways that acknowledge, perpetuate and replicate stigma. For instance, Mozambicans may allude to HIV as “stepping on the mine”, as “being poisoned” or as “getting stung”. Open conversation about HIV is avoided, which in turn creates an anxiety that motivates secrecy. This is so because disclosure of HIV serostatus may put social life at risk.

I explore perceptions of HIV among two groups of Mozambican migrants in Johannesburg: one consisting of patients receiving care for HIV in a hospital; and the other of community members unaware of their own serostatus.

The contrast between how these two groups perceive of each other is staggering. The patients apprehensively conceal their status for fear of what others might think of them. But these others express mostly empathy and understanding for their condition.

I identify two reasons for such stark perceptual contrasts. The first lies in a transformation of identity, which results in a division between an “us” and a “them”, between the HIV-positive and the HIV-negative.

This process creates a schism between “patienthood” and “personhood”. When a person tests positive for HIV, fears of physical death in the future transform into fears of social disruption in the present. Loneliness and isolation then result from the person keeping her HIV status secret.

As the identity of a community member shifts from personhood to patienthood, as she receives counselling and care, she comes to associate disclosure with her own (and others’) social death. Her serostatus then becomes a secret in her life, while her notion of others’ perceptions of HIV becomes confined to the realm of the suspected and nervously anticipated. Expecting social misfortunes should others learn of her status, she opts for concealment as a strategy of survival in the community.

Secondly, I find that stigma is tied to location, because of the ways in which location is tied to social networks. In different social networks such as family at home, friends, work colleagues, acquaintances in the community or the nightlife, the stakes of disclosure vary considerably.

For instance, one focal point of stigma is the local HIV clinic. It is supposed to care for its patients, but at the same time it also estranges them, because others might recognise them there and so become antagonists rather than fellow patients.

In fact, Mozambicans largely prefer to avoid clinics in South Africa and go home to Mozambique for treatment. The stakes of disclosure, involving livelihoods, partners and identities, are far too high to risk being seen receiving care in South Africa. Disclosure may be less hurtful in certain locations where social networks are more sympathetic.

This may further complicate the therapeutic journey of migrants in terms of costs, retention in treatment or simply having to explain away the true purpose of one’s absence.

Medicalised, not socialised

HIV may have become easier to manage medically, but stigma continues to cause distress and remains severely challenging to manage. This is also a challenge for health care provision, as it sways choices of when and where to seek care: a South African clinic, for example, or a distant, socially safer treatment option.

HIV may have been medicalised, yes, but not socialised.

US: HIV criminalisation laws increase stigma and discrimination and impede effective treatment and prevention

These laws were meant to protect people from HIV. They’ve only increased stigma and abuse.

By Anna North

Laws in many states make it a crime to have sex without disclosing your HIV status. Advocates say they may actually worsen the spread of the virus.

The policy: Criminal penalties for knowingly exposing someone to HIV

Where: Twenty-six states around the country

In place since: The 1980s

The problem:

In March 1981, an otherwise healthy Los Angeles man contracted a rare form of pneumonia usually seen only in people with severely compromised immune systems. Doctors treated him with antibiotics, but his condition worsened, and within two months, he was dead.

The Center for Disease Control, as it was then known, identified four similar cases — generally healthy young men who suddenly became very ill with the same rare lung disease — and in June 1981 published the first official report on the condition that would become known as AIDS. By the time the report was published, another of the men had died. By the end of the year, there were 337 reported cases of the condition, and 130 people had died.

Researchers discovered HIV, the virus that causes AIDS, in 1984. But the death toll kept rising, and the panic along with it. Fear and misunderstanding of the disease were such that when one student at a New York City school was thought to have the virus, 944 of the school’s 1,100 students stayed home, according to a Time magazine report. In one 1985 poll, 50 percent of people supported a quarantine of people with AIDS. Amid this panic, the idea emerged that “there were people who were intentionally spreading HIV,” Scott Schoettes, HIV project director at the LGBTQ civil rights group Lambda Legal, told Vox.

The idea may have been fueled by longstanding social prejudices, including homophobia. As journalist Steven Thrasher writes in a Guardian column on the now-debunked myth of a gay flight attendant as HIV’s “Patient Zero,” “we like to blame individuals (especially queer folks, women, immigrants and people of color) for diseases, particularly communicable ones that involve sex. Societally, it is far easier to blame them for disease rather than to deal with the complex medical, political and epidemiological causes.”

Nonetheless, states soon began instituting criminal penalties for knowingly exposing others to the virus — Florida, Washington, and Tennessee did so in 1986, Helen McDonald writes at Autostraddle. In 1990, the federal Ryan White Act, which provided funding for HIV treatment, required states to show they could prosecute people who exposed others to HIV. The laws began to proliferate, and by 2011, 33 states had one or more laws criminalizing HIV exposure. As of last year, such laws remained on the books in 26 states, according to the CDC.

How it worked:

The first problem with the laws was a simple one, according to Schoettes and others: The crime they were intended to combat didn’t actually exist. There is no evidence that a significant number of people were ever intentionally trying to infect other people with HIV.

But because many of the laws were broadly written, they were used to prosecute people who had never intended to harm anyone else — and, in some cases, who had done no harm.

Mark Hunter, for example, told Vox that he contracted HIV at the age of 7 through treatment for his hemophilia. Hunter led a healthy and active life — he had a six-figure job in Washington, DC, he said, when, in 2006, two ex-partners filed charges against him for failing to disclose his HIV status to them. Neither woman had contracted the virus, but nonetheless, he was sentenced to 12 years in prison in Arkansas, where the charges were filed.

Hunter ended up serving three years. Today, he is out on parole and living in Louisiana, but he still has to register as a sex offender. He is an outspoken advocate against laws of the kind that sent him to prison. “When we talk about criminalization, the base issue is stigma,” he told Vox. “That stigma comes from fear.”

Hunter’s is just one of many such stories. Perhaps the best-known case is that of Nick Rhoades, who had sex with another man in 2008 without disclosing his HIV status. The other man subsequently learned that Rhoades had HIV and went to a doctor for antiretroviral medication. The law in Iowa, where the men lived, required the doctor to notify police that a sex crime had occurred, according to the National Registry of Exonerations. The men had used a condom, and Rhoades’s partner had not contracted the virus. Nonetheless, Rhoades was arrested and sentenced to 25 years in prison.

Stories like these have also made people around the country afraid to get tested because “you can’t be prosecuted under one of these laws unless you know your HIV status,” Schoettes said. Testing and treatment are key ways of reducing HIV transmission, and by making people afraid to get tested, HIV criminalization laws may actually increase the spread of the virus.

A study conducted in Toronto between 2010 and 2012 (laws criminalizing HIV exposure also exist in Canada) found that 7 percent of men who had sex with men were less likely to get an HIV test for fear of future prosecution — the study authors estimated that this fear could lead to an 18.5 percent increase in HIV transmission. And in general, HIV criminalization laws likely contribute to stigma and discrimination around HIV, which world health groups like UNAIDS have identified as some of the biggest barriers to effective treatment and prevention.

Meanwhile, “these laws were used to manipulate and coerce people to stay in abusive relationships,” Tami Haught, organizing and training coordinator for the SERO Project, a group that works to end HIV criminalization, told Vox. In Iowa, where Haught lives, it was difficult for people with HIV to definitively prove they had disclosed their status to their partners as the law required. Haught recalls a woman living with HIV whose abusive boyfriend told her, “if you call the cops or leave me I will tell them you didn’t disclose your status.” If that happened, the woman, not her abuser, could go to prison.

People with HIV were even afraid to report being raped, Haught said, for fear that they could be prosecuted for failing to disclose their status during the rape.

Those sentenced under the law, meanwhile, could face decades in prison even if they had used condoms. Once released, they were often forced to register as sex offenders. In Iowa, that meant having their HIV status disclosed publicly, sometimes with a mug shot in the newspaper, Haught said. They were subject to curfews and computer searches, had to submit to twice-yearly lie detector tests, and needed permission from authorities to leave the county, she added: “They were treated as if they were these dangerous predators rather than having a consensual sexual experience with another adult.”

In recent years, though, states have begun changing their laws. Iowa was the most high-profile example. Rhoades challenged his conviction in court in 2010, and around the same time, activists began lobbying state legislators to reform the law.

Rhoades and many others fought for years to get the Iowa law changed. Finally, in 2014, then-Gov. Terry Branstad signed a new law significantly reducing the penalties for exposing others to HIV. Under the new law, if someone intentionally infects someone else with HIV, the person can still face up to 25 years in prison. But if a person with HIV only acts with “reckless disregard” in exposing someone else to the virus — for example, by not using protection — that person can face one to five years in prison, depending on whether the other party actually contracts the virus. Meanwhile, taking “practical measures to prevent transmission” of the virus makes someone exempt from prosecution, according to the Center for HIV Law and Policy.

The law also removed the requirement that people convicted of exposing others to HIV register as sex offenders, and allowed previously convicted people to be removed from the sex offender registry. After the law was signed, two Iowans who had been forced to register as sex offenders under the old law had their ankle monitors publicly removed in celebration, Haught said. That year, Rhoades won his court case, and his conviction was set aside.

Many critics have argued the changes to Iowa’s law don’t go far enough. “HIV transmission should not be criminalized—ever,” wrote Mark Joseph Stern at Slate. “HIV criminalization laws do absolutely nothing to prevent the spread of the virus.”

But in general, Schoettes said, it’s been very difficult to convince state legislators to remove penalties completely. Also, “our concern is if you get rid of the law, prosecutors may just proceed under general criminal laws without parameters or guidance” — in some states, for example, people with HIV have been prosecuted for reckless endangerment or even assault with a deadly weapon. For that reason, Lambda Legal has backed reforming rather than removing these laws.

These efforts have had success in California, where in 2017 then-Gov. Jerry Brown signed a law ensuring that people cannot be prosecuted based on HIV status unless they actually intend to transmit the virus and do so. Colorado, Michigan, and North Carolina have also reformed their laws or regulations around HIV, Haught said. And according to Schoettes, advocates are also working to repeal or reform HIV criminalization laws in Florida, Illinois, Ohio, Indiana, and elsewhere.

Today, Mark Hunter is “in a good place,” he said. He is married, and has adopted his wife’s son from a previous relationship. He has a job with the state of Louisiana, he’s a deacon in his church, and he has started an HIV/AIDS foundation named after his brother. He will be off parole in April 2020.

But his driver’s license still has the words “sex offender” printed on it. And around the country, he still sees a lot of stigma around HIV.

“Change is coming,” he said, “but it’s coming slow.”

Anna North covers gender issues, reproductive rights, workplace discrimination, LGBTQ rights, and more for Vox. Previously, she worked for The New York Times.

US: Charges of HIV exposure for spitting, despite absence of risks, prove that Georgia needs to modernise its HIV laws

HIV-positive man’s arrest for spitting called ‘plain and simple discrimination’

A 31-year-old man in Rome, Ga., was charged with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its HIV laws.

Authorities said JS was swearing at people and making obscene gestures near the intersection of Maple Road and Park Road on Aug. 25, according to the Marietta Daily Journal. S allegedly spat on officers after being apprehended by the Floyd County Police Department.

S was charged with criminal trespass, two misdemeanor counts of disorderly conduct, three misdemeanor counts of willful obstruction of police officers and three felony counts of assault on police officers by someone with HIV, according to the Floyd County Sheriff’s Office. He is being held without bond in the Floyd County Jail.

HIV cannot be transmitted by spitting, according to the Centers for Disease Control & Prevention. S’s arrest highlights why Georgia needs to modernize its HIV laws, according to Nina Martinez of the Georgia HIV Justice Coalition.

“In 2019, it’s not breaking news that saliva does not transmit HIV,” she told Project Q Atlanta. “And yet, the punishment for a person living with HIV who spits on a police officer is potentially 20 times greater than that for someone not living with HIV who commits the same offense. This is state-sanctioned discrimination, plain and simple.”

Malcolm Reid, another member of the Georgia HIV Justice Coalition, agreed with Martinez.

“Although we don’t know much about this specific case, we do know that there is no chance of HIV transmission through spit,” he said. “This proves once again that the laws in Georgia need to catch up to science. HIV is not a crime.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure. Activists and lawmakers have tried for years to modernize state law by decriminalizing HIV. 

A Republican lawmaker introduced an HIV decriminalization bill on the final day of this year’s legislative session. It will be back in the 2020 session in January.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail nearly two months later on a $3,000 bond, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

US: Michael Johnson’s release has reignated calls to overhaul HIV exposure laws.

He Emerged From Prison a Potent Symbol of H.I.V. Criminalization

Last week, Michael L. Johnson, a former college wrestler convicted of failing to disclose to sexual partners that he was H.I.V. positive in a racially charged case that reignited calls to re-examine laws that criminalize H.I.V. exposure, walked out of the Boonville Correctional Center in Missouri 25 years earlier than expected.

Mr. Johnson, 27, was released on parole on Tuesday after an appeals court found that his 2015 trial was “fundamentally unfair.” His original sentence was longer than the state average for second-degree murder.

Reached by phone two days after his release, Mr. Johnson said he was rediscovering freedom through convenience store snacks, cartoons and his cellphone.

“I’m feeling really, really good,” he said.

But there were periods when he felt intimidated by people who did not believe he had a right to stand up for himself, he added.

His case, which encompasses a half-dozen years of court appearances, unflattering headlines and stints in solitary confinement, has galvanized advocates working to update laws that they say further stigmatize and unfairly penalize people with H.I.V.

Mr. Johnson, who was a black, gay athlete at Lindenwood University in St. Charles, Mo., has become a public face of people who are disproportionately affected by the virus and entangled in the criminal justice system. (If current trends continue, about half of all black men who have sex with men in the United States will eventually learn they have H.I.V., according to the Centers for Disease Control and Prevention.)

Mr. Johnson’s legal troubles began in 2013, when he was arrested after a white man he had had consensual sex with told the police he believed that Mr. Johnson had given him the virus.

Five other men, three of them white, would later testify that Mr. Johnson had not only failed to disclose his H.I.V. status before engaging in consensual sex, but had willfully lied about it.

Mr. Johnson has publicly maintained that he informed all six men he was H.I.V. positive before having sex without a condom.

After a weeklong trial in 2015 in St. Charles County, a conservative, predominantly white area northwest of St. Louis, Mr. Johnson was convicted on multiple felony counts, including recklessly infecting another with H.I.V., which carries a 10-year minimum sentence.

The jury sought the maximum penalty of 60½ years even though prosecutors offered no genetic evidence that Mr. Johnson had infected any of his partners, according to BuzzFeed News.

The judge ultimately sentenced him to 30 years in prison.

Today, some of the people who put him in prison say the sentencing and parts of the prosecution were mishandled.

“We’re still operating under laws that were based on views that are outdated and are proven inaccurate by science,” said Tim Lohmar, the St. Charles County prosecuting attorney, whose office’s handling of the trial has been criticized.

Missouri is one of about 34 states with laws that make it a crime to expose another person to the virus without disclosure or add additional penalties for people with H.I.V. who are convicted of separate offenses, such as sex work, according to the nonprofit Center for H.I.V. Law and Policy. In six states, a person may be required to register as a sex offender if convicted of an H.I.V.-related crime.

Many of these laws were written in the 1980s and 1990s under a fog of fear about the virus and how it was transmitted, and before the advent of effective treatments. In those years, Magic Johnson’s sweat on the basketball court and Greg Louganis’s blood on a diving board panicked fans and teammates. Parents pulled children from school in 1985 because an H.I.V.-positive boy with hemophilia was in their seventh-grade class.

Back then, an H.I.V. diagnosis meant debilitating symptoms and almost certain death.

For the last five years, Steven Thrasher, a journalism professor at Northwestern University, has chronicled Michael L. Johnson’s case for BuzzFeed News and recently completed his doctoral dissertation on race and H.I.V. criminalization.

Dr. Thrasher, who greeted Mr. Johnson outside the correctional facility on Tuesday, said he was first drawn to the case because of its parallels with the history of black sexuality and lynching.

“Black men would just get lynched anytime they had sex with white women in the Reconstruction period,” he said. “There was no consensual sex that could be had between white women and black men.”

Mr. Johnson’s wrestler’s body — he called himself “Tiger Mandingo” online — was a source of fascination for some of his partners. But when Mr. Johnson tested positive for H.I.V., Dr. Thrasher wrote, he became “the perfect scapegoat.”

“It was not that he had no agency or responsibility in the story,” Dr. Thrasher said on Thursday, but “he was really holding all of this anxiety and all of this worry about AIDS and stigma and H.I.V. and queerness in America all on his shoulders.”

Mr. Lohmar, the St. Charles County prosecutor, said on Thursday that “nothing about the trial was unfair,” except for his team’s failure to present certain evidence to the defense in time.

Because prosecutors did not disclose some evidence to the defense until the morning of the trial — recorded phone conversations Mr. Johnson made while in the county jail — an appeals court decided to overturn the conviction 17 months after the original sentencing.

Instead of a new trial, Mr. Johnson, who previously had a clean criminal record, accepted a plea deal in which he did not admit guilt but agreed to a 10-year sentence.

Eric M. Selig, the lawyer who negotiated on Mr. Johnson’s behalf, said the original sentence was disproportionate to the crime.

“We don’t charge people with other incurable diseases, like hepatitis, with a criminal offense for exposing others,” he said.

During his incarceration, Mr. Johnson wrote thank-you notes to friends and strangers who had written to him in support, which he said helped him deal with homophobia in prison and self-doubt.

“You lose your confidence,” he said. “I kept every single letter.”

In theory, H.I.V. exposure laws are meant to encourage H.I.V.-positive individuals to disclose their status before having sex, and to practice safer sex, with the ultimate goal of preventing the spread of the virus.

But there is no evidence that these laws have reduced risky behavior or encouraged disclosure, said Catherine Hanssens, the executive director of the Center for H.I.V. Law and Policy, which provided legal support for Mr. Johnson’s case.

In the eyes of the law, an H.I.V. diagnosis is conflated with malice, she added.

“These laws effectively treat an H.I.V. diagnosis itself as evidence that the person acted with bad intentions when sex or other types of physical contact are involved in a crime,” she said.

Additionally, many laws do not reflect recent treatment options that can give patients a life expectancy almost as long as the general population. A pill taken daily can almost eliminate transmission, experts say. But there remain large barriers to eradicating the virus, including the high cost of antiretroviral drugs, access issues, medical mistrust and other social barriers in poor and black communities.

While some states, like California, have reduced penalties for H.I.V. exposure, Missouri has one of the most punitive laws in the country. This year lawmakers introduced two bills into the Legislature that would have slightly reduced the penalty, but they never made it to a vote.

Mr. Lohmar said he learned of Mr. Johnson’s release after receiving a call from one of the witnesses in the trial, who was upset that he was not notified.

Mr. Johnson said he planned to return to college, learn a second language and share his story through advocacy organizations like the Ryan White Planning Council in Indiana. Younger people especially need to learn about the virus to prevent it from spreading, he said.

“You can’t do it without education.”

Alain Delaquérière contributed research.

Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads. 

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV. 

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it. 

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors. 

There are reasons to take on risks to one’s health and well-being, and we 

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion”

Charting progress against discrimination

Laws discriminate in many ways, but the criminalization of people is one of the most devastating forms of discrimination. Despite calls for reform and the commitments under the 2030 Agenda for Sustainable Development to remove discriminatory laws and reduce inequalities:

  • Sixty-nine countries still criminalize same-sex sexual relationships.
  • More than 100 countries criminalize drug use or the personal possession of drugs and 98 countries criminalize some form of sex work.
  • One in five people in prison are there because of drug-related crimes and 80% of those are there for personal possession or use.
  • Nineteen countries deport non-nationals on the grounds of their HIV status.

A high-level political forum is meeting in New York, United States of America, from 9 to 18 July to review the progress made against the commitments of Member States towards achieving the Sustainable Development Goals, including those on inequality and on peace, justice and strong institutions.

“As a judge, I have seen the effect that criminal law can have on communities. It takes people outside systems of protection, declares their actions or identity illegitimate, increases stigma and excludes them from any protections our judicial, social and economic systems may provide,” said Edwin Cameron, Justice of the Constitutional Court of South Africa.

Criminalization affects access to health services, housing, education, social protection and employment. The criminalization of same-sex sexual relationships, sex work or drug use prevents people from accessing health-care services, including HIV prevention, testing and treatment. Data show that gay men and other men who have sex with men are 28 times more at risk of HIV than the general population, people who inject drugs are 22 times more at risk and sex workers and transgender women are 13 times at risk. 

“To fully implement the Sustainable Development Goal agenda and make sure that no one is left behind, we need to ensure the laws are protecting people from discrimination and not pushing people into hiding from society,” said Lloyd Russell Moyle, United Kingdom Member of Parliament.

Groups that represent criminalized people are often barred from registering as nongovernmental organizations, and, for example, sex workers often can’t unionize. Propaganda laws may mean that information on, for example, HIV prevention can’t be disseminated.

“Ending AIDS and meeting the health-related Sustainable Development Goals targets will not be possible without addressing discrimination, violence and exclusion. We have an opportunity to harness the lessons from the AIDS movement and place rights and the meaningful participation of the most marginalized at the centre of the response,” said Luisa Cabal, Director for Human Rights and Gender, UNAIDS.

Criminalized groups often experience higher rates of violence than the general population. Victims of violence who are also criminalized often can’t report crimes against them to the police, and lawyers risk violence and other repercussions if they take up their cases.

“Discrimination against and criminalization of people living with HIV still continues to this day. And we are facing in Indonesia persistent stigma against and criminalizing of key populations. We will never end AIDS if we are not making their needs and rights a top priority for access to health care, protection against violence and realization of the right to health,” said Baby Rivona, from the Indonesian Positive Women Network.

Countries that decriminalize drug use and make harm reduction services available have seen reductions in new HIV infections. Evidence shows that decriminalizing sex work could avert between 33% and 46% of new HIV infections among sex workers and clients over 10 years. However, reductions in new HIV infections are not the only outcome—other outcomes include improvements in well-being and trust in law enforcement, reductions in violence and increased access to health-care and support services. Above all, however, decriminalization of people results in them no longer being seen as criminals and stigmatized by society.

UNAIDS and UNDP urge countries to lift all forms of HIV-related travel restrictions

UNAIDS and UNDP call on 48* countries and territories to remove all HIV-related travel restrictions

New data show that in 2019 around 48* countries and territories still have restrictions that include mandatory HIV testing and disclosure as part of requirements for entry, residence, work and/or study permits

GENEVA, 27 June 2019—UNAIDS and the United Nations Development Programme (UNDP) are urging countries to keep the promises made in the 2016 United Nations Political Declaration on Ending AIDS to remove all forms of HIV-related travel restrictions. Travel restrictions based on real or perceived HIV status are discriminatory, prevent people from accessing HIV services and propagate stigma and discrimination. Since 2015, four countries have taken steps to lift their HIV-related travel restrictions—Belarus, Lithuania, the Republic of Korea and Uzbekistan.

“Travel restrictions on the basis of HIV status violate human rights and are not effective in achieving the public health goal of preventing HIV transmission,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “UNAIDS calls on all countries that still have HIV-related travel restrictions to remove them.”

“HIV-related travel restrictions fuel exclusion and intolerance by fostering the dangerous and false idea that people on the move spread disease,” said Mandeep Dhaliwal, Director of UNDP’s HIV, Health and Development Group. “The 2018 Supplement of the Global Commission on HIV and the Law was unequivocal in its findings that these policies are counterproductive to effective AIDS responses.”

Out of the 48 countries and territories that maintain restrictions, at least 30 still impose bans on entry or stay and residence based on HIV status and 19 deport non-nationals on the grounds of their HIV status. Other countries and territories may require an HIV test or diagnosis as a requirement for a study, work or entry visa. The majority of countries that retain travel restrictions are in the Middle East and North Africa, but many countries in Asia and the Pacific and eastern Europe and central Asia also impose restrictions.

“HIV-related travel restrictions violate human rights and stimulate stigma and discrimination. They do not decrease the transmission of HIV and are based on moralistic notions of people living with HIV and key populations. It is truly incomprehensible that HIV-related entry and residency restrictions still exist,” said Rico Gustav, Executive Director of the Global Network of People Living with HIV.

The Human Rights Council, meeting in Geneva, Switzerland, this week for its 41st session, has consistently drawn the attention of the international community to, and raised awareness on, the importance of promoting human rights in the response to HIV, most recently in its 5 July 2018 resolution on human rights in the context of HIV.

“Policies requiring compulsory tests for HIV to impose travel restrictions are not based on scientific evidence, are harmful to the enjoyment of human rights and perpetuate discrimination and stigma,” said Dainius Pūras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health. “They are a direct barrier to accessing health care and therefore ineffective in terms of public health. I call on states to abolish discriminatory policies that require mandatory testing and impose travel restrictions based on HIV status.”

The new data compiled by UNAIDS include for the first time an analysis of the kinds of travel restrictions imposed by countries and territories and include cases in which people are forced to take a test to renew a residency permit. The data were validated with Member States through their permanent missions to the United Nations.

UNAIDS and UNDP, as the convenor of the Joint Programme’s work on human rights, stigma and discrimination, are continuing to work with partners, governments and civil society organizations to change all laws that restrict travel based on HIV status as part of the Global Partnership for Action to Eliminate all Forms of HIV-Related Stigma and Discrimination. This is a partnership of United Nations Member States, United Nations entities, civil society and the private and academic sectors for catalysing efforts in countries to implement and scale up programmes and improve shared responsibility and accountability for ending HIV-related stigma and discrimination.

*The 48 countries and territories that still have some form of HIV related travel restriction are: Angola, Aruba, Australia, Azerbaijan, Bahrain, Belize, Bosnia and Herzegovina, Brunei Darussalam, Cayman Islands, Cook Islands, Cuba, Dominican Republic, Egypt, Indonesia, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Malaysia, Maldives, Marshall Islands, Mauritius, New Zealand, Oman, Palau, Papua New Guinea, Paraguay, Qatar, Russian Federation, Saint Kitts and Nevis, Samoa, Saudi Arabia, Saint Vincent and the Grenadines, Singapore, Solomon Islands, Sudan, Syrian Arab Republic, Tonga, Tunisia, Turkmenistan, Turks and Caicos, Tuvalu, Ukraine, United Arab Emirates and Yemen.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.