Just in 2017, several courts across the U.S.have made rulings that are gradually changing the nation’s HIV criminalization policy.
A resolution passed in the California state Senate back in May gave HIV activists a reason to rejoice.The bill made an amendment to California’s preexisting criminalization laws with regard to HIV by incorporating into them an understanding about HIV itself and treatment.To do this, the bill first downgraded HIV transmission from a felony charge to a misdemeanor; this allows those who are convicted of HIV transmission to spend up to a maximum of six months in jail, which comes in stark contrast to the years they would spend in jail prior to the passing of the resolution.Additionally, the bill obviates several criminal laws that bore acrimonious penalties for certain activities, many of which did not have anything to do with risking HIV exposure.
“There’s no evidence that criminalization inhibits HIV transmission,” Naina Khanna said.She’s the executive director of Positive Women’s Network-USA. “Instead, the threat of arrest and prosecution inhibits testing, disclosure and accessing care and treatment.Criminalization can be, and often is, used ‘as tools of coercion and control, particularly for women,” Khanna continued. “The threat of criminalization and prosecution can be enough to keep women in violent or abusive relationships.”
Khanna’s expressed concern about women being trapped by these laws is substantiated by the fact that, while only 13 percent of the Californian population is HIV-positive, they comprise 43 percent of the people whom the original HIV laws criminalized.Plus, this criminalization also targets people of color disproportionately.Despite Blacks and Latinoamericanos comprising only 51% of the state’s populace, they represent 67% of those prosecuted on the basis of an HIV status. “These laws target the most vulnerable communities, pushing them back into the shadows,” Khanna added.
On April 4, though, the Missouri Supreme Court upheld the decision of a lower court to extend a new trial to Michael Johnson, a college wrestler who made headlines when he was originally sentenced to prison for 30 years back in 2015.Johnson’s conviction was for one count of HIV transmission and four counts of HIV exposure.The former is a Class A felony in the state of Missouri, and the Black, young, college student was tried in a predominately White town, which also drew criticism.
Throughout his case, his sexuality and his ethnicity were a focal point of attention, and prosecutors asked potential jurors during the jury selection process whether they considered homosexuality a choice or not.Graphic images, including some of Johnson’s penis, and descriptions given during the trial were also admitted into evidence.The majority of Johnson’s partners were White.
This year in the U.S., several states have already had major run-ins with HIV legislation, and each has brought down a controversial ruling one way or another.In addition to California and Missouri, the state of Florida was faced with a gaping hole in their legislation when a Gary DeBaun overturned a conviction of unlawful sexual transmission by arguing that the state defines sex as an act between a man and a woman, which allowed him to be acquitted for having had sex with a man without informing after deceiving his partner into believing that he was HIV-negative.Florida is now establishing sex as inclusive of non-vaginal activity.
In American history, tracing the AIDS epidemic back to its roots leads one to the 1980s, but this primarily concerns the documented onset of AIDS as an actual epidemic.Determining the origins of questions about whether or not those infected with HIV should be criminalized for infecting others requires consideration of one Nushawn Williams.Most agree that Williams’s case established a significant legal precedent for the conversation as well as a national awareness about the potential criminalization of HIV. In his book, Notorious H.I.V.: The Media Spectacle of Nushawn Williams, Thomas Shevory1 discusses the peculiar case of Nushawn Williams at length, and in particular, he summarizes and criticizes media representations of the events in the case and the nation’s responses to them.
In the process, he addresses “how and why Nushawn Williams came to be cast as an ‘AIDS monster,’” using a thick description to contextualize the events with regard to time and place: Chautauqua County, New York, beginning in 1999.Shevory’s detailed focus on this case is, itself, an example of how large the case’s media impact was, reinforcing the common notion that it was this case that really raised questions of whether or not to criminalize those who infect others with HIV.The case was unprecedented then because Williams had, by his own admission an interview with The New York Times2, accumulated up to three hundred sexual partners.
Certain legal aspects of the Nushawn Williams case raise questions about the intent of an HIV carrier engaging in sexual relations with someone who is not infected.Wolf and Vezina3 elaborate that an Ohio lawmaker in 1999 gave a statement quite representative of the presiding, public sentiment at the time by calling it wrong for people to turn a blind eye to (and offer no protection for) those unknowingly exposed to HIV.People fully understood this because of the lethality of HIV, but an equally important issue is the stigma of HIV and the psychological effects of the diagnosis.