The Sick and the Damned Does the criminalization of HIV actually make us less safe?
Eddie Casto regrets that night. And he’s not just saying that now, after everything that’s happened.
That night, in July 2010, Casto and his girlfriend, McKenzie Lawson, brought a third person into their relationship. Casto was 19. Lawson was 16. Casto says Lawson made him feel safe. Lawson says she was in love with Casto. They each say that they wanted to do it for the other.
It was Lawson who found the third person, another 16-year-old girl. At the time, Casto says, the idea seemed like “every guy’s fantasy.”
The three met at Casto’s apartment on East Shannon Avenue in Spokane Valley, pooled their money and got one of Casto’s neighbors to buy them Four Loko. They sat around drinking. Later, the two girls stripped for Casto. They drank until they were drunk, Casto says. “The alcohol numbed the whole experience.”
Then the couple left the other girl and went into another room to talk alone. Casto and Lawson had to decide whether to tell the girl that Casto had been born with HIV.
Casto had received a good education about the risks of HIV and the ethics of disclosure. He says he wishes he would have thought about it longer. Lawson says she regrets their carelessness. The decision was made in a matter of moments. They agreed not to say anything.
They made a second bad choice later. The group had condoms, but they didn’t use them.
Casto knew the right thing to do in both cases, he says. He was raised by his adoptive parents to have a strong moral code, a code that had been reinforced by years in his church’s youth group.
“I was being a guy,” Casto says. “I should have been a man.”
The choices made that night, and events that came after, would haunt all three of the teens.
The girl never got HIV from Casto. Lawson didn’t either. Casto’s viral load was so low at the time that it would have been practically impossible to transmit HIV to someone else.
Indeed, major advances in HIV treatment, beginning in the mid-1990s, have changed the landscape of the disease from one that was very infectious and almost 100 percent fatal to a disease that — when treated properly — doesn’t kill people and doesn’t readily spread from sexual intercourse.
Antiretroviral treatments are so effective that, in 2008, the Federal Commission for HIV/AIDS in Switzerland concluded that it was functionally impossible for a person with an undetectable viral load and no other sexually transmitted infections to give HIV to another person.
So while there is only one reported case of HIV ever being eradicated in a human, treatment advances mean many people never experience the disease’s adverse effects. Casto is one such person. “I know I’m sick,” he says, “but I’ve never felt sick.”
Although the medicine and the science of HIV have changed, the laws haven’t. Right now, 33 states and two U.S. territories have laws criminalizing HIV exposure, according to the Centers for Disease Control. Some even criminalize behavior like spitting, though saliva doesn’t transmit the disease. Among the states with no specific HIV law, as many as 10 have charged people for HIV-related exposure under other statutes.
Many of the HIV laws were written in the mid-1980s to early-’90s, in the early days of the AIDS epidemic. More laws were added in the mid-to-late-’90s, when the promise of antiretroviral therapies was drowned out by reports of people intentionally trying to infect others. During this time, several states, including Washington, made their laws more stringent.
Many of the laws were designed for people who purposefully exposed others to HIV. But in states like Washington, the meaning of “intent to inflict” — and in places like Idaho, where the law reads “intent to infect” — has often been taken to mean simply “failure to disclose.”
The penalties in such cases — even when HIV isn’t transmitted — run anywhere from a couple of years in jail to a couple of decades.
- In Spokane in 2010, Zuriel Roush was convicted of lying to a sex partner about his HIV status and sentenced to more than seven years in prison and will have to register as a sex offender the rest of his life. The man Roush exposed did not contract HIV.
- In 2009, a Boise man named Kerry Thomas was sentenced to 30 years in prison for failing to disclose his status to a co-worker whom he had a relationship with. Thomas had an undetectable viral load, used condoms and the woman did not contract HIV.
- In Iowa, also in 2009, Nick Rhoades, an HIV-positive gay man who had a one-time sexual encounter, was sentenced to 25 years in prison. Rhoades’ viral load at the time was undetectable, and he used a condom. His sentence was reduced months later to time served, but Rhoades will still have to register as a sex offender for the rest of his life.
- In 2008, in Dallas, a homeless man with HIV named Willie Campbell spit on a police officer. Campbell was sentenced to 35 years.
Health officials say people who know they have HIV and don’t disclose aren’t their biggest worry. People who don’t know they are infected are a much bigger problem. And encouraging ignorance — if a person doesn’t know his status, he can’t be charged for not disclosing it — will only fuel the epidemic.
“The number of people who have HIV and don’t know it is almost 25 percent, and that quarter [of the population] is responsible for half the infections,” says Jeanne Marazzo, a professor of Medicine at the University of Washington and the chairperson of American Board of Internal Medicine’s Subspecialty Board on Infectious Disease.
There are a lot of reasons people don’t get tested, but stigma is one of the biggest. Because of it, “we have a hard time recruiting people into trials. They don’t want to come into the clinic for care,” Marazzo says.
In a 2012 study of gay men conducted by the University of Ottawa, 93 percent said they were aware of HIV prosecutions in their area. Because of these prosecutions, 13.8 percent of those men were less likely to talk to a health care worker about their sex practices and 17 percent were less likely to be tested for HIV.
A separate study by the Medical College of Wisconsin suggests that such laws may actually increase risky behavior, finding that people who thought their state had HIV-related laws were between 4 percent and 7 percent more likely to have unprotected sex.
Scott Burris, the director of Public Health Law Research, a think tank at Temple University, says that in order to eradicate AIDS, we need to be unequivocal.
“The message we need to send to people is get tested. You won’t be punished, you won’t be arrested, you won’t be stigmatized,” he says. “Secondly, we need to say, ‘Everybody should protect themselves from HIV. You shouldn’t count on the law to do it.’”
There is also emerging evidence that nationwide the laws are being disportionately applied to black men and hetersexuals. David P. Lee, former chair of Washington’s Advisory Panel on HIV/AIDS, says he saw racial disparities in his day-to-day work at Seattle-area clinics.
“I think a lot of people probably feel gay men are deserving [of HIV], but heterosexual women are victims,” Lee says. “I also think it probably inflames racial passions — black men having sex with white women.”
On Feb. 6, 1991, a woman named Nina Cotton gave birth to a boy in St. Louis. She was poor and had an unstable life. Her time with her son was short, but she gave him two things that stuck: the name Edward and HIV.
Casto says he doesn’t remember his biological mother’s voice. He doesn’t remember the clothes she liked to wear or the way she moved. He only knows her face from an ID photo of her that he blew up and put into a little frame.
By 1993, his mother had lost custody of him and his siblings — an older brother, DeAngelo, and a younger sister, Sade. Casto doesn’t know why they were taken away.
For four years, the three kids were shuffled between group homes and foster parents. Casto says he spent time in one home with his brother and was later placed with his sister, but he spent a lot of time alone.
Some of his earliest memories are of taking bad-tasting medicine. No one ever told him what it was for, and it was such a part of life, Casto says, that he didn’t think to ask.
In 1997, the day after his sixth birthday, Casto and his siblings were adopted by John and Stacy Casto of Valleyford, and brought to live in a farmhouse on the rolling hills south of Spokane.
John goes by his middle name, Dwayne, but Casto called them Mom and Dad right away. “Didn’t think twice,” he says. “It was the one thing I couldn’t wait to do.”
The house was full, Casto says — housing a total of 15 siblings, 12 of whom had been adopted. He shared a bedroom with three of his brothers, including DeAngelo. Three of them slept in the room itself, the fourth slept in a large closet.
In summers he attended Reach Camp, a Christian retreat for kids with HIV/AIDS and “other populations in need.” Casto says he knew that many of the kids at camp were sick, but at that age, he didn’t realize that meant he must be sick, too.
The next seven years, Casto says, were “totally, just, normal.”
But normal was shattered in 2002, when Casto was in fifth grade. His teacher gave a lesson about HIV. She taught the risks of getting it and the prognosis. She said that drugs had helped people live longer. Casto remembers her saying that people still die from AIDS, but many people were living a long time with the virus. “She said, ‘People who get HIV don’t die right away,’” Casto recalls. “‘You just have to take medicine your whole life to stay healthy.’”
Part of that statement struck a strange chord in Casto’s mind: “I thought, ‘I’ve been on medicine my whole life to stay healthy. Does that mean I have HIV?’”
He went home that night and asked his mom. He says she told him he didn’t have the disease. Then, a couple days later, she told Casto to get in the car. He remembers her saying, “C’mon Ed, you’re getting yourself a brand-new bike. You earned it.”
They were headed to the ShopKo on Regal Street, but Casto says he got the news when he and his mom were still in the driveway. “Remember how you asked if you had HIV?” he remembers his mom saying. “You do.”
Casto says he was in shock on the ride to ShopKo. He remembers picking out a little blue mountain bike, and being happy in the moment, but mostly he thought about his teacher’s lessons about HIV. “After seeing those videos they show you,” he says, “I was broken. I was scared. It was a nightmare I had to go through.”
The nightmare was something he would have to go through alone. Casto was born after his brother, but before his sister. Neither of them had gotten HIV. It felt cruel, Casto says, to be “the oddball that — miraculously — got this disease.”
Because the room he shared with his brothers was crowded, Casto began sitting alone for hours in a clothes basket in his family’s laundry room. He says he escaped to that place for months. The thought constantly running through his mind, he says, was: “I’m gonna die.”
In 1997, two months after Casto came to live in Valleyford, a police detective named Mitch Lacke stood before a House committee in Olympia and testified that Randall Ferguson had terrorized his town — Camas, Wash. — for seven years.
Ferguson had HIV and was implicated by prosecutors in more than 50 cases of HIV exposure, including five women — two of whom were his wives — who later died of AIDS. Lacke said Ferguson was “almost unstoppable,” according to an Associated Press article, and that he had taunted his victims, saying, “If they get [AIDS], they deserve it.”
Because of Washington’s statute of limitations, Ferguson could only be charged with the exposure of one woman. Because of the maximum sentence range placed on second-degree assault, Ferguson was sentenced to 10 years in jail.
Ferguson was one of several high-profile HIV-exposure trials in the U.S. around that time.
That same year, the case of 21-year-old New Yorker Nushawn Williams became national news. Prosecutors alleged Williams had exposed as many as 75 partners to HIV, and health officials believed that as many as 13 of his partners contracted HIV. Williams was convicted of one count and sentenced to 12 years in prison, but was then civilly confined in 2010 under a sexual predator law that flagged him as a high risk to reoffend.
When Detective Lacke spoke in Olympia, it was to advocate for the passage of Senate Bill 5044, which would upgrade Washington’s HIV exposure law to a first-degree assault charge. First-degree assault is a class A felony in Washington, which carries a maximum sentence of 26 1/2 years.
State Sen. Don Benton, R-Vancouver, sponsored the Washington bill and said taking people like Ferguson off the streets was a matter of public safety. “Rather than using a knife, a gun or a baseball bat, they use a communicable disease as a weapon,” Benton told the AP.
Lawmakers from everywhere on the political spectrum voted for Benton’s bill, including the current Republican Congresswoman Cathy McMorris Rogers; the Democrat Lisa Brown, now State Senate Majority Leader; and Jim West, who was famously outed as a gay man by the Spokesman-Review while serving as mayor of Spokane.
The law passed easily in the House and enjoyed almost unanimous support in the Senate. Gov. Gary Locke vetoed a section lifting the statute of limitations from HIV-related assaults, but signed the bulk of the bill into into law on July 27, 1997.
Then, almost overnight, the landscape of HIV changed dramatically.
The antiretroviral therapies that were just beginning to prolong life in the mid-’90s began to stave off the disease entirely. U.S. deaths from HIV had risen quickly from 16,000 in 1988 to almost 42,000 in 1995, but dropped even faster. Within three years, the number was back near 16,000.
In 2007, fewer Americans died of AIDS (12,734) than died of Hepatitis C (more than 15,000).
In the mid-2000s, studies began to show that these therapies also lessened the risk of transmission, by generally reducing the amount of HIV in the body.
Regardless of how much the science may have changed, the law hasn’t, says Patrick Johnson, the Spokane County deputy prosecutor who argued the case against Casto.
“It’s my hope that, in the future, we don’t need this law,” Johnson adds. “I would hope that we find a cure, and this is no longer a potentially deadly virus. But if we repealed it right now, I would not feel good about it. I would think that we’re still leaving people in danger by not providing a criminal sanction for that kind of behavior.”
Johnson says Washington legislators were pretty clear about the law. “It was, in a very real sense,” he says, “an action [by the Legislature] to recognize that people having unprotected sex without informing their partner are passing on a deadly disease.”
As long as there is any risk, and no cure for HIV, Johnson says, the law applies. He adds that, at least in Spokane County, the law has been applied sparingly. Since 1986, when the original HIV-related second-degree assault charge was created, only three people have been prosecuted. First was Larry Mullins, who was acquitted in 1997, but took a plea deal on a second arrest in 2007. The other two prosecuted were Zuriel Roush in 2009 and Eddie Casto in 2010.
Johnson says he doesn’t think Casto wanted to give anyone HIV, but “there was some premeditation here.” Casto and Lawson talked about disclosing his status to the other girl, Johnson says, and “they decided to get her drunk instead.”
“Did he want her to die?” Johnson asks. “I really doubt it. But given his actions, I’m comfortable charging this as a serious assault.”
Lisa St. John of the Spokane Regional Health District wouldn’t take a position on the criminal law, but says, in her experience, state health codes have been sufficient to deal with people who endanger the public health.
The Health District fields complaints of risky behavior on a regular basis, and follows the same procedure for all communicable diseases: People are brought in and counseled on the risks of transmitting disease, and how their behavior may be increasing those risks. “We get them regularly connected to us in case management,” St. John says.
If these voluntary steps aren’t followed, and if the person continues to endanger others, the Health District would issue a cease-and-desist order — something it has only done twice for people with HIV. As a last resort, the Health District could ask law enforcement to detain the person, a process that is similar to jailing them, but doesn’t involve a criminal trial.
“To my knowledge,” St. John says, “it’s never gone to a detention by a health officer in Spokane or even in Washington state.”
Casto and Lawson broke up not long after that night in July. Casto says Lawson always demanded to know where he was. Lawson says Casto acted more like a parent than a boyfriend. They went to counseling. It didn’t work.
In late September, Lawson says she began filling out a court petition to move out of her parents’ house. Casto says he didn’t think it was a good idea. He had done the same thing to leave his adopted parents, and now he regretted it.
Casto went to Lawson’s house, and he urged her to talk with her parents. Lawson recalls saying, “’Fine, you want me to tell the truth, then I will.’” Lawson called to her mom to come upstairs, she says, “and I told her me and Eddie had sex, and he came in me.”
Lawson’s mother told her father, and it spread from there. Eventually stories about that night and Casto’s status ended up on Facebook. On Sept. 30, sheriff’s Detective Timothy Hines was assigned the investigation.
Hines didn’t return numerous calls for comment. The account that follows comes from the affidavit of facts Hines filed in court and Casto’s recollection.
About a week after Lawson told her mother about their relationship, Casto says Hines knocked on his door asking about his relationship with Lawson and the second girl. “He said, ‘At this point, we’re just looking into it,’” Casto recalls. “So I told him everything. Truthfully.”
“I thought that if I told him the truth,” Casto says, “I wouldn’t get in trouble. That was stupid of me.” Casto didn’t think he had broken any laws, but as the conversation drew on, Casto began to question that.
The conversation ended when Casto asked, “Should I be talking to an attorney?”
Casto says Hines stood up, said “Now that you brought an attorney up, we have to stop,” and then left.
When Hines returned, on Oct. 12, he came with several other deputies, a search warrant and arrested Casto on two counts of HIV-related first-degree assault.
When news of Casto’s arrest spread the next day, Chris Rogne’s phone started to ring.
Rogne was Casto’s youth pastor at Valley Real Life church. A friend told Rogne: “I don’t know if this is true, but I just heard that Eddie was arrested.” Rogne tried calling Casto’s cell phone, but there was no answer. Then a second person called, telling Rogne: “Man, they’re mentioning stuff on the news already.”
Rogne turned his television to KXLY, and Casto’s photo popped up. The television coverage detailed the three-way sex and possible video Casto had taken of a previous encounter with his girlfriend. Rogne says he feels the coverage was sensational. “The report focused on that he had a ‘menay-two-ahge’ or whatever you call that,” he says. “They talked like he was a monster.”
Rogne did not believe Casto to be a monster. Rogne says he met Casto during the teen’s freshman year of high school. Rogne oversaw more than 300 youth in the church. Casto stood out. “He was very well-liked. Welcoming. Accepting. People loved Eddie.”
It bothered Rogne that the news reporters hadn’t tried to contact Casto’s friends or family. “That’s what broke my heart,” Rogne says. “I’m sitting there and I think, ‘OK, wait a second. Nobody knows anything about this guy, and yet by the time the media is done with him and exploiting his HIV and the sex and whatever else, it’s going to be ridiculous.’”
Sean Strub, director of the Sero Project, which seeks to end HIV criminalization, says the nonprofit reviewed news reporting from all over the country in an effort to quantify how many people had been arrested on HIV-related crimes. Along the way, he says, Sero found that “coverage of these cases is often erroneous, if not hysterical.”
He says the tone of the pieces often doesn’t match the danger to viewers and compounds stigma: “It’s this: ‘public health emergency! Have you slept with this man?’” Strub says, imitating the tone. “It’s a breathless, ‘this-just-in, have-you-seen-this-man,’ that you just don’t do for any other disease. HIV comes with this neon sign.”
Looking at media reports and court records in Michigan, Trevor Hoppe found something else troubling. Hoppe, a researcher at the University of Michigan, set out to catalogue HIV-related prosecutions in the state. He says he expected the demographics of incarceration to roughly correspond with the demographics of the disease at large. In the 56 prosecutions he was able to verify, the results were almost exactly the opposite.
“These laws have a potential to be homophobic” because of the number of gay men living with HIV, Hoppe says, “and I was sort of surprised to find that gay men weren’t being targeted.”
In Hoppe’s 37-county sample, white men who have sex with men account for almost 40 percent of people with HIV, but only account for 15 percent of defendants.
The numbers for straight black men are flipped: They account for only 14 percent of HIV cases, but almost 41 percent of the arrests.
There’s an over-emphasis on heterosexual people in general — accounting for 80 percent of arrests and only 40 percent of the HIV population — but the data, Hoppe says, gets even starker among blacks. “These laws are disproportionately punishing straight black men,” Hoppe says, “by a factor of three.”
Hoppe’s study is among the first in the nation to track arrests, sexual preference and race in this way. At least anecdotally, Hoppe’s numbers fit the local landscape.
Among the five cases of HIV-related prosecution The Inlander found in local press accounts since 2006 — three in Spokane County, one in Moscow, one in Boise — four are heterosexual and three are black, including Casto.
David P. Lee, the former chair of Washington’s Advisory Panel on HIV/AIDS, says it’s hard to draw a conclusion about systemic racism from five cases in two states and three counties. But even if these statistics don’t point to overt, intentional racism, Lee says, “I think it’s evidence of our ongoing social issues. Not just about HIV itself, but how HIV plays into the larger issue of race.”
Jason Gillmer, chair in Civil Liberties at Gonzaga Law School, says that proving legal bias — especially when race doesn’t appear in the language of the law — is very difficult.
You have to prove the law violates the equal protection clause of the 14th Amendment, and the bar for that is high. “You have to show that the Legislature or the prosecutors were singling [a group] out,” he says. “That’s an incredibly difficult standard.”
Just consider crack cocaine. “In the ’80s, we passed these draconian measures to punish crack as opposed to powdered cocaine. The penalties were 100-to-one ratios. To no one’s surprise, it disproportionately affected black people.” A lot of cases were brought against these laws, Gillmer says, and “in every case the judge rejected the equal protection claim.”
“There’s the larger policy question there, though, which we all know,” he says. “Do we want to have a law that has this effect?”
Casto spent 212 days in the county jail awaiting trial, and then he took a plea deal. The deal cut his sentence down from a minimum of 5 years in prison to a maximum of 31 months.
He also has to register as a sex offender for the next 15 years because detectives found a video of him having sex with Lawson on her computer. In Washington state, it is legal for a 19-year-old and a 16-year-old to have a sexual relationship, but it is illegal for them to tape the act, because it falls under child pornography statutes. “That is a strange glitch in the law,” says Johnson, the deputy county prosecutor.
The day of his sentencing, Johnson stood before the judge and told her that the two girls who had gone to Casto’s apartment that night lived in agonizing fear. “Both of them have continued to test negative for HIV,” he said, “but they don’t know, the next test may turn up positive.”
The girl who slept with Casto spent a year worrying she would contract HIV. She had her blood tested six times, once every two months. The people doing the testing told her that a negative test after three months meant she was out of harm’s way, but she kept going anyway, just to be sure.
Every test McKenzie Lawson took came back negative, too, but that didn’t stop her classmates from starting a rumor that she had contracted HIV from Casto. She says she was hospitalized for depression and that she changed schools.
Lawson now says she regrets the way she told her mom about her and Casto. “I regret the whole thing.”
That day at sentencing, she asked the court “to just let him know that I love him and I’m sorry to all his family and his—,” she stopped here, “and if everybody can forgive me.”
Casto apologized, too. He stood and admitted to doing what he was accused of doing. He apologized to both girls and her parents. He apologized to his own parents.
His HIV case manager, Victoria Carding, acted as a kind of character witness. She said that Casto did not deserve the label he was about to receive, according to court records. “I work with a number of sex offenders…” she said. “I do not believe that his actions are congruent with those of a sex offender.”
In all, Casto would spend a year and almost nine months behind bars. When he was released on June 25 this year, he walked out a different person. Now, when he is riding in a car, he tries to keep his head facing forward. “I don’t want to look at people,” he says. “I don’t want to make eye contact.”
He says part of that is to avoid looking at young women. The sex counselor he has been ordered to see told him he has to write any encounters with girls between 12 and 18 down in a journal.
Before prison, he says he sought out jobs where he could interact with customers at places like Red Robin, Hollister and TJ Maxx. But it’s different now. He’s put in applications at a dozen places. “Home Depot, Northern Quest, Winco…” he says, “somewhere I can work in the back.”
Casto has enrolled in fall classes at a local college. His quarterly financial aid is enough to pay tuition and books. If he budgets right, he says, he thinks he’ll be able to make payments on the speeding tickets that have languished in collections while he sat in prison. He’ll pay them off, then get his license back, he says. At some point, maybe, a car.
When Casto was locked up, and especially on those first nights in the county jail, he says he pushed the fear and guilt from his mind by focusing on a verse from the Bible, Phillipians 4:8, which reads, in part, “whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable — if anything is excellent or praiseworthy — think about such things.”
As weeks became months, as his trial became a plea bargain and then a prison sentence, the praiseworthy things Casto thought about were the good deeds he says he would do when he left prison. The way he would find a way to make his disease and his sex offender status an instrument of the Lord and an instrument of advocacy for people living with HIV.
With school about to start, he says he feels like he’s taking the first step to get there.
“My pastor told me this scripture one time,” Casto says. “It said something like, ‘God uses our weaknesses for greatness.’
“I know my HIV status is my weakness,” he says. “I’m hoping God will use it for greatness.”