In Memory of HIV Criminalization Survivor David Plunkett

By JD Davids

From TheBody

May 18, 2018

TheBody is sad to share the news of the recent death of David Plunkett, a survivor of HIV criminalization in New York who served half of a 10-year sentence. David would have turned 54 today.

Plunkett was released in 2012 after a ruling by the New York Court of Appeals in his case that the saliva of a person with HIV could not be characterized as a deadly weapon or dangerous instrument.

By many accounts, Plunkett brought humor and a positive spirit to what he had endured.

“He was intelligent, and for all he’d been through, he had a surprisingly positive perspective on life,” said Audrey Baron Dunning, who represented Plunkett at the appellate level and took his case to the Court of Appeals. “We always laughed whenever we talked.”

After his release, Plunkett became certified as a paralegal.

Although the details of his passing are not fully known at this time, TheBody received confirmation from the Onondaga County Medical Examiner’s Office near his current home in Rome, New York. We will update this story with more information as it is received.

“At 43 years old, I never imagined how different my life would be because of my arrest and incarceration,” Plunkett said on the occasion of the 2014 release of a guidance from the U.S. Department of Justice on the need to reform or eliminate HIV criminalization laws. “I also never realized the stigma attached to those with HIV and especially those who also have a criminal record. I should have been able to focus on my health and career, not battling a system that incarcerates those who live with a chronic illness and remains uninformed about the nature and transmission of HIV.”

David contributed an essay to the catalog for Cell Count, an exhibit curated for Visual AIDS opening on May 31 in New York City. Plunkett’s piece is below.

“It’s deeply unfortunate that David won’t be there to feel the rallying support we hoped to provide for him and others through this project. I’m glad that he knew this was happening,” said Asher Mones, one of the exhibition’s curators. “He expressed a lot of joy knowing that people were organizing around reforming criminalization, and I think he would be happy to know that his story will not be lost.”

(TheBody thanks Brian Carmichael, an imprisoned artist living with HIV whose work will be featured in Cell Count, for informing us of Plunkett’s passing.)

Here is David Plunkett’s essay on being criminalized in New York:

I was 46 and semi-retired when I found myself incarcerated by the New York State Department of Corrections and Community Supervision at the infamous Sing Sing prison, located approximately 45 minutes from New York City.

I was diagnosed HIV positive in June 2006, a time I’ll never forget. I could find no resources for people living with AIDS and HIV (PWA) in my small town and began taking prescription narcotics and drinking heavily. On September 18, I had a doctor’s appointment and I had crashed my car, so my uncle took me to the office. I was intoxicated at the time, and the police were called. I was later told that I acted up. I was arrested and sent to the county jail. I remained in that very small jail for a year until my case adjudicated. I was eventually sentenced to ten years, maximum security.

This sentence all came about because, as the police were arresting me, they figured out I was gay. They broke my bones and skinned me up. At one point during the arrest, I made a mistake and revealed my HIV status; I stated that I was positive. I saw that I was bleeding, and for their safety as well as mine, I did the responsible thing. I knew I was not able to transmit the virus due to a low viral load. My meds were working, and I was well! However, my lawyer assured me the small town jury that had been selected would not see it this way. I was gay and worse yet, I was a “monster.” I had HIV and most people at the time believed the people who acquired the disease were “bad” gays, drug addicts, and sex workers.

This was social discrimination at its finest. HIV criminalization and stigma are still alive and well, even in the gay community today, where those who are negative often won’t associate with those who are positive, even while it is common knowledge that HIV is only transmitted by specific body fluids, such as breast milk, blood, and semen. Saliva will not transmit HIV. Yet, the judge in the lower court charged me for exposing the police officer to my saliva, which was clear of any blood. For this I served time.

While in state custody, I began writing letters to various legal firms that represented high-profile HIV/AIDS cases, evictions, discrimination, and unfair sentencing. To my delight, Lambda Legal took my case. Lambda is probably the best-known LGBTQ legal organization representing the community since the gay rights movement began. I had one of the top lawyers defending me: Scott Schoettes, an HIV-positive attorney with a passion for those unfairly treated by the system. He states, “There are two ways that prosecutions are brought against people living with HIV based on their HIV status. One of them is through general criminal laws, and that’s what we had in the Plunkett case. The other way is through HIV-specific criminal law.” Scott wrote an amicus (“friend of the court”) brief to accompany my attorney’s brief, which stated that I could not be charged with “aggravated” assault, because my teeth and saliva came with me, and therefore were not a dangerous weapon.

I waited four years for my appellate decision, a very long time when you are innocent. While I waited, I attended Mercy College and, upon my release, I was able to take the five classes I needed to graduate with my BA in behavioral sciences. I took every opportunity to participate in prison programs. I was going to do my time, not allow my time to do me! I was eventually released in 2012, and the decision set the standard for New York state, where HIV cannot be considered a “deadly weapon.” My release was a long time coming, but I made it, and I’m now completing my master’s in psychology, a field with many opportunities for those seeking employment under my circumstances.

It still saddens me that I continue to be stigmatized by society and the legal system today, especially when I learn about folks doing incredible amounts of time for HIV crimes that would be considered ridiculous by a society using critical thinking and taking the time to learn the very basics of HIV/AIDS. According to one study, “Research reveals that perceived discrimination is adversely related to a broad range of health outcomes and health risk behaviors.” When PWA’s are continually told by a discriminating society they do not deserve to live a happy and successful life, they are more likely not to medicate themselves with lifesaving drugs, therefore increasing rates of transmission. The best way to reduce HIV stigma is education, and the best way to deal with a court system that is stuck in the ’90s is to educate and lobby court officials.

JD Davids is a senior editor and the director of strategic communications at TheBody.com and TheBodyPRO.com.

Published in the Body on May 18, 2018

Transmitting HIV Is a Crime in Most States. Is HCV Next?

Back when AIDS was dominating the news, 33 states passed laws making it illegal for HIV-infected people to have sex without their partner’s knowledge of the individual’s HIV status. Such laws were based on the idea that their bodily fluids constitute a deadly weapon.

Efforts to repeal or reform these laws have been gaining momentum in recent years, now that HIV infection is no longer considered a fatal disease. But in a surprising twist, some states are now broadening the scope of criminalization laws to include viral hepatitis and other infections, leaving some physicians dismayed and advocates deeply divided on the best path toward reform.

One of those states is Iowa, which in 2014 became one of the first states to repeal and replace its HIV criminalization law. However, the revised law now includes viral hepatitis, tuberculosis, and meningitis.

Earlier this year, South Dakota lawmakers considered a bill that would have created a hepatitis C-specific statute in addition to the state’s existing HIV criminal law.

“Fortunately, this portion of the [South Dakota] bill failed, but I wouldn’t be surprised if we see more efforts of this kind, especially in states that are being hard hit by the opioid crisis,” says Kate Boulton, JD, MPH, and staff attorney at The Center for HIV Law & Policy.

In addition to the 33 states with HIV criminalization laws, at least 12 states now have criminal laws specific to hepatitis, Boulton said. The laws vary, with some directly tracking HIV exposure and others limited to interactions with police or prison staff.

Such laws also raise the possibility that physicians will be forced to testify against their patients.

It’s not hypothetical. In 2014, Wendy Armstrong, an HIV specialist in Atlanta, was served a subpoena to testify against her own patient. The patient, who she refers to as ‘Paul’ to protect his privacy, was accused of misleading a former sexual partner about his HIV status — a criminal offense in Georgia punishable by up to 10 years in prison.

Armstrong reluctantly testified, confirming that Paul had been aware of his status for a decade. Although Paul claimed he was honest with his partner, who was never infected, he was found guilty. Later, the prosecutor congratulated Armstrong for helping to put a “scumbag” in jail.

“This impacts our patients,” Armstrong said. “And as such it’s our duty to understand — and to make sure our patients understand — what the legal environment they’re in is like.”

That might mean uncomfortable conversations with patients about the jail-time implications of sharing needles or having sex without first disclosing infection status — conversations that might make it even harder to build trust in the physician’s office.

What Happened In Iowa

Iowa’s HIV criminalization law from the 1990s had especially harsh penalties. One man was sentenced to 25 years in prison for theoretically exposing his partner to HIV, despite the fact that he had an undetectable viral load and had used a condom.

By 2010, advocates in Iowa felt the time was right to push for reform, but initially struggled to identify a platform that would be palatable to the state’s conservative lawmakers. The head of Iowa’s Department of Public Health at the time, a Republican and an ophthalmologist named Mariannette Miller-Meeks, MD, supported modernization. Working for her was Randy Mayer, head of the department’s Bureau of HIV, STD, and Hepatitis, who put together a fact sheet with several recommendations.

In his fact sheet, Mayer suggested a more moderate punitive system that reserved harsher punishment only for those who intend to infect others. Mayer’s fact sheet also zeroed in on the idea that focusing on HIV enhances stigma, and suggested that a reformed law could include other infections as well.

Those suggestions ultimately became part of a controversial law passed in 2014.

“I understand about why people were upset about that [because] none of us want the statutes even for HIV,” Mayer says, but “we also felt that repeal wasn’t a reasonable option, so we made this awful choice.”

Although counterintuitive, Iowa’s new, more comprehensive law may result in fewer prosecutions overall because it’s more difficult to prove someone intended to infect another person, says Allison Nichol, Legal and Policy Counsel at The SERO Project. Ultimately, some reform in Iowa was better than none, Nichol argues.

Not all advocates agree.

“I think it’s problematic,” says Boulton. “We don’t want to be pursuing a reform strategy that relies on naming and criminalizing other health conditions.”

“It’s just bizarre,” says Elizabeth Paukstis, Public Policy Director, National Viral Hepatitis Roundtable. Instead of reducing stigma against HIV, Paukstis argues an expanded law “perpetuates the stigma that’s already out there against people with hepatitis C.”

“While I am entirely in favor of modernizing HIV criminalization laws, it needs to be done correctly,” says Armstrong. “The wrong answer is to broaden the scope of the law to include other diseases…. I personally think it’s a very dangerous direction to go.”

Viral Hepatitis On The Rise

The United States is home to 3.2 million people living with hepatitis C, which kills more people every year than HIV, tuberculosis, and 58 other infectious diseases combined. Acute cases of hepatitis C have more than doubled since 2010, fueled by the opioid addiction crisis.

At least 12 states now criminalize viral hepatitis, meaning gastroenterologists and other clinicians could be compelled to testify against their own patients — though none of the sources interviewed for this story were aware of this happening.

Among states that now criminalize hepatitis, some, such as Tennessee and Mississippi, passed laws that track with existing HIV criminalization laws, says Boulton. Other states, such as Georgia, Pennsylvania and Missouri, passed stand-alone laws that only apply to interactions with police or corrections officers.

“It’s obviously a concern to see that this is being applied to an infection like hepatitis C,” especially because hepatitis C is now curable, says Raymond Chung, MD, Director of Hepatology and the Liver Center at Boston’s Massachusetts General Hospital. “The real crime, if you will, is that we haven’t been able to detect and refer to care and get into treatment each person who has hepatitis C.”

Because of the high rate of hepatitis C in prisons and its association with injection drug use, patients with hepatitis C are arguably even more marginalized than those with HIV, says Paukstis.

“These folks are in an incredibly vulnerable place, and it’s just not appropriate [to] penalize people for lacking education about the law and lacking education about this disease,” says Armstrong.

Little Awareness Among Clinicians

Armstrong estimates that about one-third of her colleagues who treat HIV infection are aware of criminalization laws, and medical associations such as the HIV Medicine Association (HIVMA) and the Infectious Disease Society of America (IDSA) continue to spread awareness of HIV criminalization by publishing position papers on this issue.

Meanwhile, the majority of gastroenterologists and liver disease doctors would be “quite shocked” to learn that some states criminalize hepatitis C, said Reau. The American Association for the Study of Liver Diseases (AASLD), does not have an official stance on this issue. Even in Iowa, where the 2014 reform was highly publicized, many physicians may not know about new restrictions.

“I think few HCV clinicians in Iowa are aware or the revised law regarding criminalization of hepatitis C transmission,” says Michael Ohl, MD, an infectious disease specialist at the University of Iowa. “My sense is that this conversation does not often come up with patients.”

“Any doctors who are treating hep C patients [should] be concerned,” says Paukstis. “There’s no scientific basis for these laws, and it’s something that can be used to discriminate and punish their patients.”

“I think it would be helpful for as many people involved in infectious disease and infection control be aware so they can counter ill advised laws from being enacted,” says Michael S. Saag, MD, past president of HIVMA and director of AIDS Research at the University of Alabama at Birmingham.

“In this way, they could also pivot the desire from legislators to ‘do something’ to having them do something that’s much more positive and effective,” Saag says.

When asked how these new laws might impact the doctor-patient relationship, Saag said the laws “could place the provider in conflict with the interest of patients.” But Saag, who treats patients with HIV and has known about HIV-specific criminalization laws for years, says the law should never get in the way of delivering good care.

“I never think about that when I’m taking care of a patient,” Saag says. “I’m always advocating for their best interest, and that means controlling the infection.”

Published in News Health on April 20, 2018

Journalist Steven Thrasher Reflects on HIV Criminalization, Race, and the Press on the Eve of Michael Johnson’s Announced Parole Decision

By Tim Murphy

From TheBody, April 17, 2018

The story of Michael Johnson, a gay black wrestler who named himself “Tiger Mandingo” online, was the perfect storm of racism, homophobia, and the outdated HIV-phobia embodied in various laws criminalizing people with the virus for having sex. (Although the number of such laws is decreasing under pressure, they still exist in many states.)

From almost the beginning of the story in 2013, when Johnson was arrested in his dorm room, through the news last week that he will be paroled in 2019, New York-based journalist Steven Thrasher was virtually the only reporter to push past the prosecution’s press releases and talk directly to Johnson and others involved. The reporting, for Buzzfeed, resulted in a strikingly in-depth and complex look at the situation and the racial, sexual, and legal dynamics driving a trial that originally landed Johnson a 30-year sentence. (Here are all the stories, in chronological order: 1, 2, 3, 4, 5, 6, 7, 8, 9.)

TheBody talked to Thrasher, who is also a doctoral candidate in American Studies at New York University, about his four-year saga of covering Johnson’s case and what it says about how we have — and haven’t — changed when it comes to how we see race, sexuality, and HIV.

Tim Murphy: Have you talked to Michael Johnson since the parole (which won’t happen for another 18 months) was announced?

Steven Thrasher: I’ve talked to his friend in Indiana whom he’s going to be living with when he gets out. She’s lined up a part-time job for him in a warehouse; then, she’s going to help him get back into school. He actually is not allowed to go to public college for the first year. He’s 25 or 26 now. By the time he gets out, he’ll have served six years.

TM: How did you come onto the story in the first place?

ST: My editor Mark Schoofs at Buzzfeed put me on it. He said: “This black kid with HIV is being made out to be a black predator monster and nobody’s talked to him. Go to Missouri and talk to him.” The initial reporting on the case wasn’t reporting at all, but just rewrites of the prosecutor’s press releases, which were salacious. You see that happen a lot with legal stories about black, queer, or HIV-positive subjects, but it’s also a bigger problem in journalism.

TM: What are the big takeaways for you on this story?

ST: There are many. The biggest is that it puts HIV laws into the foreground and calls them into question. Many people, myself included, might first think that there could be some rational basis for these laws [that primarily criminalize people with HIV specifically for having sex without disclosing their HIV status to partners]. But it simply isn’t true. They’re at best ineffective and at worst harmful in terms of increasing HIV stigma and discouraging people from getting tested.

The story also shows, just like the story of the police murder of Michael Brown in Ferguson, that people don’t have to be “perfect” to rally around. [After receiving an HIV diagnosis, Johnson may or may not have disclosed his HIV status to multiple sex partners before having condomless sex — that much remains unclear.] Since this story began, the Black Lives Matter (BLM) movement has created a different way of standing up for people. We’ve had a long tradition from the mid-20th-century civil rights movement forward that people have to be the camera-ready ideal victims to rally around. The Michael Brown story said that all people are worth rallying around, and I feel that way about Michael Johnson.

The case is also an early example of thinking about how people are judged in court by their social media presence. [Johnson named himself “Tiger Mandingo” on Instagram and posted numerous pictures of his shirtless, buff body.] I would not want to be judged in court solely for my social media presence.

The case focused on interracial sexual desire and how often the responsibility for it is offloaded completely onto black people. The bulk of Michael’s accusers were white and, in court, they speak almost entirely in passive language about their own role in the sexual exchange, the way that, historically, white women would be framed as innocent in any sort of sexual exchange they had with black men, saying it was rape. Or it being considered rape even if it were consensual.

The case also exposed this perception on the part of many HIV-negative people that the world has to keep them from becoming HIV positive, and all they have to do is ask, “Are you clean?” and that absolves them from having to use a condom or taking any other kind of preventive measure. Actually, everyone needs to work together to try to keep HIV rates down.

TM: It’s interesting that the story started before the widespread emergence of pre-exposure prophylaxis (PrEP) or even the growing understanding that someone with HIV on meds who is undetectable is also virtually unable to transmit the virus.

ST: There was no PrEP in Missouri at the time. But, I’m not sure that it would have made a difference. Michael Johnson probably wouldn’t have had access to it. [Even today, PrEP access among gay black men is comparatively low.

TM: Also, the campus of Lindenwood University appears to have had little-to-no sexual health or HIV/AIDS prevention resources. Condoms weren’t even for sale at the health center.

ST: Right. They might not even know about or be offering PrEP today. [I called the university’s health center and asked about “getting on PrEP for HIV,” and the woman who answered had no idea what I was talking about. So, Thrasher is likely right.]

TM: It is an open question, though, whether Johnson clearly told his sex partners that he was HIV positive before they had sex without a condom. Should there have been any legal action against him?

ST: I would say no. I don’t think law enforcement is an effective or appropriate tool for this issue. But also, the punishment should not have been anything like the original sentence of 30 years, or even the six years he’ll end up doing. It was completely out of proportion to what he did. There are shorter sentences in Missouri for murder. In California, the maximum sentence on an HIV criminalization charge is six months.

TM: Did you ever ask him why he had unprotected sex when he knew he was HIV positive?

ST: I don’t think I asked him that. He said on the record in court that he always told his partners. No one will know for sure what he said. He said to me that he never wanted to hurt anyone. When I asked him whether he knew who gave him HIV, he said he couldn’t say for sure but that he wouldn’t want to because he’d never want what happened to him to happen to anyone else.

TM: Do you think the media have gotten better at covering this kind of intersection of race, sex, and HIV since Johnson’s story broke?

ST: I think coverage on both race and HIV has gotten a lot better. Even just a few years ago, most reporting on anything racial was from an unselfconsciously white perspective. BLM has had a big impact, not just in terms of writing about race but forcing a reflection on the subjectivity, biases, and assumptions of reporters themselves.

TM: How do you think HIV coverage has improved?

ST: For a long time, the only gay thing that was making news was gay marriage, which doesn’t address any number of injustices and challenges that many LGBT people face.

But HIV/AIDS brings up sex, drug use, poverty, homelessness, structural racism — all very difficult things to write about. Coverage has gotten better because editors have given people like me the opportunity to cover this stuff, and BLM has increased the viability of reporters and advocates getting their stories through newsrooms. There’s been a consciousness-raising that marriage is not the entire story and that homophobia plays out in other ways in society. Look at Linda Villarosa’s New York Times Magazine cover story last summer on HIV rates among gay black men in the South.

I also think the [Centers for Disease Control and Prevention] releasing the stat in 2016 that one in two gay black men would get HIV really forced mainstream gay organizations to realize that this was more urgent.

I also think the emergence of PrEP has made HIV an issue that’s clearer and more compelling for HIV-negative people.

TM: What is Michael Johnson like?

ST: He’s very sweet, very nice, gentle, and simple. He’s literal-minded. When I asked him how he got to college, he said, “I took the bus.” I’ve seen him in person a couple times a year the past few years, and he has no ill will toward anyone about this. He’s extremely sorry for everything that’s happened. He’s very smart about exercise and fitness and says he wants to become a personal trainer. I really learned that if there’s one thing reporters can do differently, it’s to actually talk to all the people involved in a story.

TM: What was it like working on the story for you, as a gay black man?

ST: It’s been hard at times and made me feel vulnerable. I hadn’t remembered that the prosecutor turned to the judge and said, “There’s a so-called journalist in the room, and I think he has an agenda, and I’ve asked the court to admonish him.” And the judge did. He told me not to talk to the jurors. It was frightening to have the bailiffs with their guns standing there, watching me intently.

I felt like I was watching a slow-motion lynching. I never thought Michael was without any responsibility in the situation, but he was still scapegoated by being made to carry responsibility for everyone in those sexual encounters. Watching that unfold, the legal violence of this kid maybe getting sent away for life was difficult.

But, if I hadn’t reported this story, then “Black Monster Spreads AIDS” is all the reporting that would have happened. My reporting got the interest of the ACLU and Lambda Legal. I kept pointing out how all the national gay organizations would have nothing to do with Michael. But then a group of nearly 100 black gay men wrote an open letter of support to Michael, and some of them started a GoFundMe that raised $25,000 toward the private lawyer that appealed his case on the basis of withheld evidence and got his sentence down to 10 years from 30.

And a separate group of HIV public health experts and faith leaders wrote a letter to the prosecutors asking for a more reasonable sentence for Michael that would not destroy his life. And now, he will be out of prison and able to restart his life in his mid-20s.

So, overall, despite how the story started, I’ve felt positive about how it all played out.

This transcript has been lightly edited for clarity.

Tim Murphy has been living with HIV since 2000 and writing about HIV activism, science and treatment since 1994. He writes for and has been a staffer at POZ, and writes for the New York Times, New York Magazine, Out Magazine, The Advocate, Details and many other publications. He is also the author of the NYC AIDS-era novel Christodora.