On Monday July 13, 2015, Michael L. Johnson was sentenced to 30½ years in prison (a concurrent sentence) after being convicted of “recklessly infecting a partner with HIV” and “recklessly exposing partners to the virus.” We are outraged by this sentencing and Johnson's incarceration. This represents a failure of the justice system and a blatant manifestation of structural violence in the lives of Black gay men.
The State of Missouri was able to convict Michael Johnson without having to prove that he had any intent to infect his sexual partners nor demonstrate that he was in fact the person who transmitted HIV to his sexual partners. We are outraged by the criminalization, arrests and imprisonment of those prosecuted under HIV criminalization laws. We will continue to fight for Michael, to repeal HIV criminalization laws, to dismantle the Prison Industrial Complex, and to end the stigma and violence perpetrated upon people living with HIV by these laws. With this mission in mind, we are calling for the following:
The Right for People Living with HIV to choose if, when, and how they disclose
HIV disclosure is not safe under every circumstance. People with HIV may face risks ranging from loss of employment to personal humiliation, custody battles, and violence resulting from disclosure. In addition, the burden of proving disclosure rests on the person living with HIV, not her/his partner. While we are committed to helping create a world where disclosure of HIV status is safe, we reject the notion that disclosure of HIV status should be coerced by the State. Laws criminalizing alleged non-disclosure do not make it easier to disclose, and do not protect people from acquiring HIV.
An HIV prevention policy that relies on disclosure of HIV status fails to account for the fact that data shows a person is more likely to contract HIV from a sexual partner who is unaware of their HIV positive status and that effective care and treatment for people living with HIV reduces the likelihood of transmission to almost zero. The best approach for those who are HIV-negative or of unknown HIV status is to practice self-efficacy and care – an approach which could include prevention strategies such as: (1) Learning how HIV and other STDs are transmitted and effective ways to prevent contracting the virus (2) Taking PrEP (3) Using condoms (4) Getting tested with partners for HIV and other STDs (5) Engaging in lower risk sexual activities (6) Identifying support and resources to leave unhealthy relationships that don't support protecting oneself (7) Confronting insecurities that lead oneself to seek validation by engaging in higher risk sexual behavior.
Today, HIV is no longer a near certain death sentence. With timely diagnosis and proper treatment HIV has become a manageable chronic disease similar to diabetes. People living with HIV can and are living long, healthy, and wonderful lives. And yet, the stigma remains. The truth is that criminalization of HIV is not really about our fear of HIV itself but the stigma that is attached to it. Those of us who are not living with HIV fear that if we contract HIV that we will suffer a lifetime of discrimination and rejection. Given this fear, those of us who are HIV negative should understand why someone who is living with HIV would not disclose her or his HIV status. Therefore, the real target is HIV stigma, including institutionalized stigma which manifests in laws and policies such as HIV criminalization.
Advocacy Against HIV Criminalization is Advocacy Against Mass Incarceration
HIV is a human rights issue, and criminalization of people living with HIV is a social justice issue. Resisting the Prison Industrial Complex means understanding how inequities in the HIV epidemic and sentencing disparities within the criminal justice system interface with laws that criminalize people with HIV. HIV criminalization laws serve as a means of expanding the categories of people subject to imprisonment, by virtue of an immutable characteristic-positive HIV status. In effect, this creates a biological underclass. HIV criminalization does not provide solutions nor will throwing people into prison lower HIV acquisition rates.
HIV criminalization is another manifestation of a broader agenda which has attempted to control the bodies, the sexuality, and the desires of queer and trans people and cisgender women, especially those who are low income and/or from communities of color. This is the same agenda that plays out in attempts to control women’s access to abortion and contraception and reproductive decisions. This not only includes denying low income women abortion services through Medicaid but the criminalizing of pregnant women who are drug users. The sexual and reproductive rights of communities of color, LGBTQ folks, and women has been policed and criminalized throughout the history of this country. Policies based on restricting our body autonomy, stirring up homo- and transphobia, and spreading HIV-related fears have never been and will never be just or sound public policy.
Alternatives to Criminalization: Towards Restorative Justice and Healing
We acknowledge the HIV epidemic has caused immense pain to many in our communities. As a society, we must be intentional about supporting and providing healing for those who have been affected by HIV. We firmly believe that HIV criminalization does not serve to meet these ends. Prisons will not save us. Criminalization is never a solution. Instead, we call for a wholistic approach based on restorative justice principles. Rather than resorting to criminalizing sexuality of people living with HIV, we should treat HIV as an issue of public health, individual health, and human rights and dignity. We must ensure that everyone who is living with HIV (and those who are not) have access to quality and affordable healthcare. As stated above, data shows that suppressing the viral load of a person living with HIV through effective care and treatment reduces the chances of HIV transmission to zero, even if condoms are not used. If states like Missouri are seriously concerned about reducing HIV transmission, they would do better to focus their resources on ensuring their residents living with HIV have access to high-quality, nonstigmatizing, trauma-informed, affordable healthcare. Instead they perpetuate a political agenda that cuts lives short and violates human rights, especially for people of color and those living in poverty, by refusing to expand Medicaid.
Even more importantly than individual actions, we must push for societal changes to the norms and stereotypes that inhibit sexual autonomy and encourage higher risk behaviors. We must advocate for sex education that challenges dominant paradigms around gender norms and heteronormativity. Thus, comprehensive sex education rooted in modern medical science, sex positivity, and harm reduction, and inclusive of all sexualities and genders is crucial. We must address systemic discrimination that places people at risk for housing, food and employment insecurity. We should demand media accountability on pathologized portrayals of Black, brown, and queer bodies and sexuality.
HIV criminalization laws are intricately tied to histories of racism, sexism, and homophobia. These forces in the present continue to enact injustice and perpetuate these laws. For this reason, we call for greater engagement of LGBT and racial justice organizations and leaders in HIV decriminalization advocacy. We know various local, state, and national organizations and individuals have already stepped up to the plate, but more boots on the ground are needed to fight back against these laws. LGBT and racial justice organizations must take more leadership around this issue by resourcing advocacy, defense litigation, attempts to repeal these laws at the state level, and drawing attention to HIV criminalization as a practice grounded in homophobia, racism, and sexual and reproductive oppression.
We are heartbroken at what has happened to Michael Johnson, but we are no less determined to fight for him, fight for his freedom, and the freedom of all our brothers and sisters incarcerated under HIV criminalization laws. We are also equally committed to standing in solidarity with all movements committed to ending oppression from the dominant culture of policing and criminalizing vulnerable communities. Together we become more powerful. We must resist. We will resist. We resist.
Black is not a crime.
LGBTQ is not a crime.
HIV is not a crime
Counter Narrative Project
Positive Women's Network - USA
HIV Prevention Justice Alliance
National Center for Lesbian Rights