We Still Prosecute HIV Without Addressing How It's Spread

Missouri college student Michael L. Johnson, who was sentenced to 30 years in prison for spreading HIV, recently saw his conviction reversed pending a new trial.

His alleged crime: having unprotected sex with men while knowing he was HIV-positive.

Never did a punishment seem so ill-fitting.

Men who poke holes in condoms don't yet get hauled off to U.S. jails for impregnating women. Women who lie about being on birth control aren't jailed, though it might be argued that having an unwanted child creates both a financial and emotional long-term responsibility.

Still, in the U.K. a man was jailed for giving a woman genital herpes, a chronic condition that is present in one-sixth of U.S. residents between 14 and 49. In fact, there are laws in many states that provide for the prosecution of those who knowingly transmit or even expose partners to virtually any type of sexually transmitted infection, including curable ones.

If we take the logic behind these laws to its conclusion, we should be charging people who go to work while feeling sick or those who refuse to have their children vaccinated, as they place us all at risk. We don't, however, because HIV is still different. Culturally, it's different even from viral hepatitis, which currently kills more people in the United States than AIDS.

As a child of the 1980s in New York City, I grew up thinking HIV was the single worst infection a person could contract. Every day were were bombarded with messages about sexuality tinged with fear. Magic Johnson came out in the 1990s proclaiming he was HIV-positive and that "it can happen to anybody," amping up the terror.

At the same time, Barton Lidice Benes, an artist who was diagnosed with HIV, felt similar fear when he cut himself in the kitchen. He was afraid of his own blood as it dripped from his wound, all the while knowing how crazy it was for him to fear his own body. He put on plastic gloves and got bleach and began to clean furiously. "That's when I thought if I have this fear you can imagine the fear other people have," Benes said in a recorded interview that aired on WNYC's Radiolab.

Benes turned his fear into a series of artworks he called "Lethal Weapons." He put his HIV-infected blood into squirt guns, perfume diffusers, and trick flowers. There were protests when his work went on tour. "They called it the AIDS horror show," Benes recalled.

Displayed behind glass enclosures, these works are still relevant because in Missouri, where Johnson was sentenced, he had to be careful with his own biological "lethal" weapon even behind bars.

Causing or attempting to cause mental health workers or corrections officers to come into contact with bodily fluids from a prisoner who who is infected with HIV or hepatitis B or C is a class C felony in the state.

Much has been written about the ways in which Johnson's case was damaging to public understanding and perception of HIV, which is no longer a death sentence. But his sentencing was not so much damaging to the public perception as a reflection of it. Most of us are still ignorant, so it is a major victory to learn that the courts will reconsider his case.

Many people are just becoming aware that PrEP medication is covered by many insurance plans and can prevent uninfected persons from contracting HIV or that that female condoms can be used by men on the receiving end of anal sex.

People do not know that laws criminalizing HIV transmission have been shown to have little public health effect. But mostly, they don't know that condoms, essential to preventing sexually transmitted infections, are not available in most U.S. correctional facilities, which is exactly where the courts decided to send this "known HIV spreader."

According to the courts' line of thinking, Johnson was the only party to blame for spreading HIV. "This defendant was totally irresponsible and placed countless people at risk," the prosecutor is quoted as saying.

But more people are put at risk of contracting HIV every day in the prison system than any number Johnson endangered.

According to the Centers for Disease Control and Prevention, one out of seven people infected with HIV pass through the prison system each year. If an HIV-positive person behind bars were charged with transmitting HIV to a prisoner during consensual sex, shouldn't the state then stand as a codefendant? If a person were to become infected with HIV in prison and spread HIV to a person outside, would the prison system be liable then? Or, is it OK and expected for prisoners to get HIV, while white male college students who bareback should be protected?

In Missouri, as in other states, sexual relations between prisoners are forbidden, and prisoners caught in compromising positions may be subject to sanctions, according to the state's prison rule book. However, making a rule against something doesn't mean it doesn't occur; in fact it means quite the opposite. Sex between prisoners does happen as anyone who's watched Locked Up or the fictional Orange Is the New Black can attest.

Sexuality is natural and human and irrepressible, yet California, Mississippi, and Vermont are the only states that require condoms be made available to inmates. In the 1980s, San Francisco County Jail became the first in the county jail to hand out condoms, and decades later, it's still only one of a handful of prisons and jails in the country to do so.

Johnson, the allegedly criminal HIV spreader, was sent from one place without free condom access -- his college -- to an even more restricted one. If the state really cared about preventing HIV, rather than prosecuting Johnson again, it would start handing out free condoms behind bars.

ELIZABETH DALEY is an Advocate contributor. She can be found on Twitter @Fakepretty.