Crime, Health Care / Medicine, Justice

Infecting People With HIV Shouldn't Be A Crime... I Think

The burden in our society is on partners to protect themselves from their imperfect knowledge by insisting on protected sex.

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AIDS Memorial in NYC

AIDS Memorial in NYC

If you are around my age, then you became sexually aware around the time where HIV was a death sentence. Do not pass go, do not collect $200 in your workplace discrimination claim, just go directly to Tom Hanks in Philadelphia jail and die.

Times have changed. Science has changed. HIV is survivable. One must imagine that Roger from Rent is still alive.

Still, it’s hard to shake the feeling that HIV is the worst possible outcome of any sexual encounter. And so it’s easy to view people who have HIV and knowingly engage in unprotected sex as monsters. This guy right here, Michael Johnson, sounds like a monster:

Johnson was a student-athlete at Lindenwood University in St. Charles, a St. Louis suburb, until his arrest in 2013. He was convicted of one count of recklessly infecting another with HIV, and four counts alleging he exposed or tried to expose others. Prosecutors argued Johnson knew he was HIV positive and lied to sexual partners.

Johnson had his conviction thrown out by the Missouri Court of Appeals thanks to prosecutorial shenanigans. He awaits a new trial. Gay rights activists and the ACLU have rallied to Johnson’s side… which, again, seems monstrous because it sure sounds like Johnson exposed many men to HIV without telling them.

But when the ACLU and pro-gay forces are on one side, and I’m on the other, I slow down to re-examine my assumptions.

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What we have here is consensual sex between two adults: one adult with knowledge of their own medical history, another adult with imperfect knowledge. What burdens should the criminal law place on the knowledgeable adult to bring the partner up to speed? Should you have to tell your partner if you have the flu? What about mononucleosis? Mono is the “kissing disease.” Should there be a penalty for somebody knowingly making you miss school for a month?

What about gonorrhea? People have been giving each other the clap for all of recorded history, without facing criminal prosecution or persecution. What about syphilis? Syphilis is probably as dangerous as HIV, given where we are with treatments right now.

If you play the law school hypothetical out, you’ll see that we generally don’t impose criminal penalties for the reckless transmission of communicable diseases. If you are free to move about without being quarantined, you’re free to slobber all over whichever partner will have you.

The burden in our society is on the partner to protect themselves from their imperfect knowledge by insisting on protected sex. If somebody prevents you from using a condom, that’s sexual assault. And we have laws against that. But we don’t have a society where merely asking to not use a condom is a criminal offense.

Part of why we treat HIV so differently is because of the way we stigmatize the gay community. Above the Law columnist Will Meyerhofer, who has had infinitely more gay sex than I’ve had, points this out well:

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We should all receive sex education, and be responsible for our own behavior. If you want to use a condom, insist on using a condom….

The partner knows the risk. Most of the time, the HIV+ partner doesn’t even know his own status. The point is, you have to protect yourself – you can’t just leave that up to someone else. That’s not going to work.

[A bunch] of the guys at a gay bar in Chelsea were HIV+ in my day. It’s a fair guess, if you’re not using a condom, that you’re essentially communicating that you’re positive, too…

The key is to drill it into these guys’ heads that they need to insist on a condom, and get tested regularly. Bringing criminal law into it would be disastrous and counter-productive. Just drive people deeper into the closet and secrecy and stigma.

The impulse to criminalize non-disclosure of HIV status is one reason that the status is not freely disclosed. You can see how stopping a flirtatious encounter with a damn public service announcement — “Before we go any further, I should say that I have this thing. I barely know you, but please judge me and reject me as you see fit.” — is a high bar. Maybe it’s too high a bar to attach criminal penalties to those who fail to reach it.

When I first saw the Michael Johnson story, I thought, “Eww. Gross. BURN HIM. BURN HIM BEFORE HE INFECTS ALL OF US.” I think my initial reaction was the wrong one. I think it was born of fear and ignorance and a memory of 1990s sex ed videos that made AIDS seem like a plague you could get for butt-slapping the cleanup hitter as he rounded third base.

And maybe Michael Johnson is a jerk. Maybe he had a higher moral duty to protect his partners than he exhibited. Maybe he should have been more courageous with his intimate disclosures. But lack of courage isn’t a criminal offense. The law does not have a good track record when it comes to criminalizing actions between two consenting adults.

Some things are just too complicated for criminal law to adequately deal with.

I’ll let Will have the last word, because he makes sense and because I’m not allowed to use “the bottom” in a sentence:

It’s simpler to say – hey, take care of yourself – you don’t know (and he might not know) what his status is. But there’s one way to be sure you’re safe, which is to insist he use a condom. And why not take care of the bottom, and insist on using a condom with him, even if he doesn’t insist.

Missouri court orders new trial in HIV-infection case [Associated Press]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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