US: It is time to review previous convictions under the former HIV law and issue pardons

HIV law has changed, but those prosecuted under former measure struggle to overcome convictions

Jeremy Merithew had a hook-up in 2012 that he will remember for the rest of his life. He met a man on the gay app Adam4Adam. The man came over for sex and left.

The next day, a deputy from the Kent County Sheriff’s Department was knocking on his door and he ended up behind bars.

The reason? Police and prosecutors said he broke Michigan’s felony law called AIDS — Sexual Penetration with Uninformed Partner. The law, passed in 1988, required a person who knows they are living with HIV to disclose their status to potential sexual partners before engaging in any sexual penetration “however slight.”

Critics of the law called it a stigmatizing remnant of a time when the science of HIV was not fixed and infection was considered a likely death sentence.

They went to work and got the Legislature to change the law in 2019. The new law created misdemeanors crimes requiring prosecutors to prove a person had an intent to transmit their infection and took actions likely to transmit it. The new law specifically creates protections for people living with HIV who use a risk reduction method to prevent passing the virus, including condoms or being on HIV medications that suppress the virus.

Merithew is fighting back after serving his sentence and is preparing to ask Gov. Gretchen Whitmer to pardon him. And he’s got some powerful allies in his actions: former state. Rep. Jon Hoadley (D-Kalamazoo), Jay Kaplan of the American Civil Liberties Union (ACLU) of Michigan, and HIV activist and political leader Sean Strub, executive director of the Pennsylvania-based Sero Project that works to help reform HIV-specific criminal laws, as well as working with those who have been prosecuted under these laws and are trying to re-enter society.

“How was this justice?” Hoadley said of the case against Merithew. “Jeremy posed no risk before the charges, and he posed no risk after his conviction. How did we help society by putting him in prison? We don’t.”

Kaplan, who is the staff attorney for the ACLU of Michigan LGBTQ Project, said the laws had “tragic consequences.”

“The whole idea that based on a medical status — that you tested positive, you are automatically considered a criminal — is wrong,” Kaplan said. He said it was often used as a political tool by elected prosecutors in order to appear “tough on crime.”

Hoadley believes Whitmer and her administration should review all convictions under the former felony law and issue pardons for those where a conviction would not be achieved under the new law.

Whitmer’s office did not respond to repeated requests for comment for this story. Michigan Attorney General Dana Nessel also didn’t respond.

There is a precedent to expunging criminal convictions after a law changes. After Michigan legalized personal possession of marijuana for recreational use in 2018, the state allows those convicted for possession and other non-violent marijuana crimes to seek and expungement of their records.

Hoadley, Kaplan and Strub agree it’s time to review those previous convictions under the former HIV law.

By the time Merithew was in court, science had shown the prescription drugs released in 1996 could not only stop HIV from replicating in the body and slow if not halt the virus’ relentless destruction of the immune system, but that it made that person unable to sexually transmit the virus. This discovery led to a prevention method called “undetectable = untransmittable.” It is also referred to as “treatment as prevention.”

Despite science clearly demonstrating that a person on medications with an undetectable viral load being unable to transmit HIV, Merithew was prohibited by Kent County Circuit Court Judge James Redford from bringing up the medical facts as a defense in his trial. Prosecutors offered Merithew an opportunity to plead guilty to one count of the disclosure law by having anal sex. But when he refused, they lodged a second charge for oral sex and a charge of using a computer to commit a crime.

“It doesn’t make sense to ignore the science,” said Strub. “When a person with HIV shows up in a courtroom there seems to be a presumption of guilt, rather than a presumption of innocence. It seems to be on the person with HIV to prove they disclosed their HIV status.”

Without the medical science to show he didn’t pose any threat, a sympathetic victim — a married Black man with two young children at home who worked raising money for homeless services in Grand Rapids — a deputy who expressed his unease with looking at same-sex sexual behavior and string of messages from the hook-up site that were ambiguous as to whether Merithew disclosed his HIV status, Merithew was convicted and sent to prison.

In addition to the prison sentence, Redford ordered Merithew to register as a sex offender for the next 15 years, which has prevented him from moving to certain areas or living in a home with children or getting most jobs. The former felony law was not among criminal convictions listed in the state’s sex offender registry requiring registration. However, Redford relied on a catch-all clause in the law intended for minors convicted of sex crimes to order Merithew on the sex offender registry.

Merithew is out of prison and living in a northern Michigan community with his mother. He said he hopes to complete a Ph.D in psychology focusing on the impact of trauma in people’s lives.

Merithew told the Advance he was offered a position in Lansing earlier this year. He attempted to move closer to the area, but he said officials in the county he was looking to move to threatened his relatives with child protective services involvement and removal of their children if he was allowed to live with them. He said had to decline the position as a result.

While Merithew is white, a study published by Trevor Hoppe in 2015 — then a doctoral student at the University of Michigan and now an assistant professor of sociology at University of North Carolina — found a racial disparity of who was being prosecuted. His study found that white women and Black men who had sex with women had a more likely potential of prosecution under the law in Michigan. He characterized this disparity as an “uneven application” of the felony law.

Strub said HIV criminalization laws across the country result in further shaming and stigmatization of people living with HIV by forcing them to register on sex offender lists.

“From a human rights perspective, these are egregious human rights violations often imposing draconian prison sentences of decades in situations not only where there was no transmission, but no risk of transmission,” Strub said.