South Africa: African migrants face dual challenge of navigating HIV care and social stigma

The social management of HIV: African migrants in South Africa

HIV is the most common chronic illness in South Africa. One in every five is infected and one in every 13 takes antiretroviral drugs daily. Managing HIV medically has become more of a part of normal life.

Amid this public health emergency, some 2.5 million foreign-born African immigrants live in South Africa. They largely come from countries with the highest HIV prevalence rates in the world, such as Lesotho. Yet their access to health care and services is limited, because they are vulnerable in various ways. Though entitled to inclusion and care in South Africa, they may face deportation, xenophobia, exploitation, language barriers, cultural estrangement and social isolation.

In spite of these challenges, migrants do manage HIV medically. But we do not really know how they manage socially in communities where the stigma of the disease affects all dimensions of life. HIV is often referred to today as a “manageable” chronic illness, but it is not just a medical condition. It is also very much a social condition as living with HIV comprises both clinical features of care and experiences of stigma and social angst.

Understanding how migrants manage this social dimension of their condition matters because it shapes the landscapes and outcomes of their care. It directly influences when and where people seek treatment, and how well they adhere to it if they do. This in turn affects critical issues such as drug resistance and prevention of transmission.

In a recent journal article, I unravel complexities of stigma and perceptions of HIV in Mozambican migrant communities. My research exposes layers and shades of stigma across different social networks and locations, which influence how HIV is managed socially. It shows how an individual’s HIV status determines how other community members are regarded and interacted with in daily life.

Perceptual contrasts

Nowhere in South Africa is the migrant population as dense as in inner-city Johannesburg. In their urban enclaves, community members inevitably lead lives entwined with those of people receiving care for HIV, whether aware of their infection or not.

HIV is spoken of here in ways that acknowledge, perpetuate and replicate stigma. For instance, Mozambicans may allude to HIV as “stepping on the mine”, as “being poisoned” or as “getting stung”. Open conversation about HIV is avoided, which in turn creates an anxiety that motivates secrecy. This is so because disclosure of HIV serostatus may put social life at risk.

I explore perceptions of HIV among two groups of Mozambican migrants in Johannesburg: one consisting of patients receiving care for HIV in a hospital; and the other of community members unaware of their own serostatus.

The contrast between how these two groups perceive of each other is staggering. The patients apprehensively conceal their status for fear of what others might think of them. But these others express mostly empathy and understanding for their condition.

I identify two reasons for such stark perceptual contrasts. The first lies in a transformation of identity, which results in a division between an “us” and a “them”, between the HIV-positive and the HIV-negative.

This process creates a schism between “patienthood” and “personhood”. When a person tests positive for HIV, fears of physical death in the future transform into fears of social disruption in the present. Loneliness and isolation then result from the person keeping her HIV status secret.

As the identity of a community member shifts from personhood to patienthood, as she receives counselling and care, she comes to associate disclosure with her own (and others’) social death. Her serostatus then becomes a secret in her life, while her notion of others’ perceptions of HIV becomes confined to the realm of the suspected and nervously anticipated. Expecting social misfortunes should others learn of her status, she opts for concealment as a strategy of survival in the community.

Secondly, I find that stigma is tied to location, because of the ways in which location is tied to social networks. In different social networks such as family at home, friends, work colleagues, acquaintances in the community or the nightlife, the stakes of disclosure vary considerably.

For instance, one focal point of stigma is the local HIV clinic. It is supposed to care for its patients, but at the same time it also estranges them, because others might recognise them there and so become antagonists rather than fellow patients.

In fact, Mozambicans largely prefer to avoid clinics in South Africa and go home to Mozambique for treatment. The stakes of disclosure, involving livelihoods, partners and identities, are far too high to risk being seen receiving care in South Africa. Disclosure may be less hurtful in certain locations where social networks are more sympathetic.

This may further complicate the therapeutic journey of migrants in terms of costs, retention in treatment or simply having to explain away the true purpose of one’s absence.

Medicalised, not socialised

HIV may have become easier to manage medically, but stigma continues to cause distress and remains severely challenging to manage. This is also a challenge for health care provision, as it sways choices of when and where to seek care: a South African clinic, for example, or a distant, socially safer treatment option.

HIV may have been medicalised, yes, but not socialised.

US: HIV criminalisation laws increase stigma and discrimination and impede effective treatment and prevention

These laws were meant to protect people from HIV. They’ve only increased stigma and abuse.

By Anna North

Laws in many states make it a crime to have sex without disclosing your HIV status. Advocates say they may actually worsen the spread of the virus.

The policy: Criminal penalties for knowingly exposing someone to HIV

Where: Twenty-six states around the country

In place since: The 1980s

The problem:

In March 1981, an otherwise healthy Los Angeles man contracted a rare form of pneumonia usually seen only in people with severely compromised immune systems. Doctors treated him with antibiotics, but his condition worsened, and within two months, he was dead.

The Center for Disease Control, as it was then known, identified four similar cases — generally healthy young men who suddenly became very ill with the same rare lung disease — and in June 1981 published the first official report on the condition that would become known as AIDS. By the time the report was published, another of the men had died. By the end of the year, there were 337 reported cases of the condition, and 130 people had died.

Researchers discovered HIV, the virus that causes AIDS, in 1984. But the death toll kept rising, and the panic along with it. Fear and misunderstanding of the disease were such that when one student at a New York City school was thought to have the virus, 944 of the school’s 1,100 students stayed home, according to a Time magazine report. In one 1985 poll, 50 percent of people supported a quarantine of people with AIDS. Amid this panic, the idea emerged that “there were people who were intentionally spreading HIV,” Scott Schoettes, HIV project director at the LGBTQ civil rights group Lambda Legal, told Vox.

The idea may have been fueled by longstanding social prejudices, including homophobia. As journalist Steven Thrasher writes in a Guardian column on the now-debunked myth of a gay flight attendant as HIV’s “Patient Zero,” “we like to blame individuals (especially queer folks, women, immigrants and people of color) for diseases, particularly communicable ones that involve sex. Societally, it is far easier to blame them for disease rather than to deal with the complex medical, political and epidemiological causes.”

Nonetheless, states soon began instituting criminal penalties for knowingly exposing others to the virus — Florida, Washington, and Tennessee did so in 1986, Helen McDonald writes at Autostraddle. In 1990, the federal Ryan White Act, which provided funding for HIV treatment, required states to show they could prosecute people who exposed others to HIV. The laws began to proliferate, and by 2011, 33 states had one or more laws criminalizing HIV exposure. As of last year, such laws remained on the books in 26 states, according to the CDC.

How it worked:

The first problem with the laws was a simple one, according to Schoettes and others: The crime they were intended to combat didn’t actually exist. There is no evidence that a significant number of people were ever intentionally trying to infect other people with HIV.

But because many of the laws were broadly written, they were used to prosecute people who had never intended to harm anyone else — and, in some cases, who had done no harm.

Mark Hunter, for example, told Vox that he contracted HIV at the age of 7 through treatment for his hemophilia. Hunter led a healthy and active life — he had a six-figure job in Washington, DC, he said, when, in 2006, two ex-partners filed charges against him for failing to disclose his HIV status to them. Neither woman had contracted the virus, but nonetheless, he was sentenced to 12 years in prison in Arkansas, where the charges were filed.

Hunter ended up serving three years. Today, he is out on parole and living in Louisiana, but he still has to register as a sex offender. He is an outspoken advocate against laws of the kind that sent him to prison. “When we talk about criminalization, the base issue is stigma,” he told Vox. “That stigma comes from fear.”

Hunter’s is just one of many such stories. Perhaps the best-known case is that of Nick Rhoades, who had sex with another man in 2008 without disclosing his HIV status. The other man subsequently learned that Rhoades had HIV and went to a doctor for antiretroviral medication. The law in Iowa, where the men lived, required the doctor to notify police that a sex crime had occurred, according to the National Registry of Exonerations. The men had used a condom, and Rhoades’s partner had not contracted the virus. Nonetheless, Rhoades was arrested and sentenced to 25 years in prison.

Stories like these have also made people around the country afraid to get tested because “you can’t be prosecuted under one of these laws unless you know your HIV status,” Schoettes said. Testing and treatment are key ways of reducing HIV transmission, and by making people afraid to get tested, HIV criminalization laws may actually increase the spread of the virus.

A study conducted in Toronto between 2010 and 2012 (laws criminalizing HIV exposure also exist in Canada) found that 7 percent of men who had sex with men were less likely to get an HIV test for fear of future prosecution — the study authors estimated that this fear could lead to an 18.5 percent increase in HIV transmission. And in general, HIV criminalization laws likely contribute to stigma and discrimination around HIV, which world health groups like UNAIDS have identified as some of the biggest barriers to effective treatment and prevention.

Meanwhile, “these laws were used to manipulate and coerce people to stay in abusive relationships,” Tami Haught, organizing and training coordinator for the SERO Project, a group that works to end HIV criminalization, told Vox. In Iowa, where Haught lives, it was difficult for people with HIV to definitively prove they had disclosed their status to their partners as the law required. Haught recalls a woman living with HIV whose abusive boyfriend told her, “if you call the cops or leave me I will tell them you didn’t disclose your status.” If that happened, the woman, not her abuser, could go to prison.

People with HIV were even afraid to report being raped, Haught said, for fear that they could be prosecuted for failing to disclose their status during the rape.

Those sentenced under the law, meanwhile, could face decades in prison even if they had used condoms. Once released, they were often forced to register as sex offenders. In Iowa, that meant having their HIV status disclosed publicly, sometimes with a mug shot in the newspaper, Haught said. They were subject to curfews and computer searches, had to submit to twice-yearly lie detector tests, and needed permission from authorities to leave the county, she added: “They were treated as if they were these dangerous predators rather than having a consensual sexual experience with another adult.”

In recent years, though, states have begun changing their laws. Iowa was the most high-profile example. Rhoades challenged his conviction in court in 2010, and around the same time, activists began lobbying state legislators to reform the law.

Rhoades and many others fought for years to get the Iowa law changed. Finally, in 2014, then-Gov. Terry Branstad signed a new law significantly reducing the penalties for exposing others to HIV. Under the new law, if someone intentionally infects someone else with HIV, the person can still face up to 25 years in prison. But if a person with HIV only acts with “reckless disregard” in exposing someone else to the virus — for example, by not using protection — that person can face one to five years in prison, depending on whether the other party actually contracts the virus. Meanwhile, taking “practical measures to prevent transmission” of the virus makes someone exempt from prosecution, according to the Center for HIV Law and Policy.

The law also removed the requirement that people convicted of exposing others to HIV register as sex offenders, and allowed previously convicted people to be removed from the sex offender registry. After the law was signed, two Iowans who had been forced to register as sex offenders under the old law had their ankle monitors publicly removed in celebration, Haught said. That year, Rhoades won his court case, and his conviction was set aside.

Many critics have argued the changes to Iowa’s law don’t go far enough. “HIV transmission should not be criminalized—ever,” wrote Mark Joseph Stern at Slate. “HIV criminalization laws do absolutely nothing to prevent the spread of the virus.”

But in general, Schoettes said, it’s been very difficult to convince state legislators to remove penalties completely. Also, “our concern is if you get rid of the law, prosecutors may just proceed under general criminal laws without parameters or guidance” — in some states, for example, people with HIV have been prosecuted for reckless endangerment or even assault with a deadly weapon. For that reason, Lambda Legal has backed reforming rather than removing these laws.

These efforts have had success in California, where in 2017 then-Gov. Jerry Brown signed a law ensuring that people cannot be prosecuted based on HIV status unless they actually intend to transmit the virus and do so. Colorado, Michigan, and North Carolina have also reformed their laws or regulations around HIV, Haught said. And according to Schoettes, advocates are also working to repeal or reform HIV criminalization laws in Florida, Illinois, Ohio, Indiana, and elsewhere.

Today, Mark Hunter is “in a good place,” he said. He is married, and has adopted his wife’s son from a previous relationship. He has a job with the state of Louisiana, he’s a deacon in his church, and he has started an HIV/AIDS foundation named after his brother. He will be off parole in April 2020.

But his driver’s license still has the words “sex offender” printed on it. And around the country, he still sees a lot of stigma around HIV.

“Change is coming,” he said, “but it’s coming slow.”

Anna North covers gender issues, reproductive rights, workplace discrimination, LGBTQ rights, and more for Vox. Previously, she worked for The New York Times.

Uganda: HIV law deters communities from seeking HIV services and should be reformed

Kaleba scolds Parliament: The AIDS law is poisonous

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

HEALTH  HIV/AIDS 

The founder of The Aids Support Organization (TASO), Noerine Kaleeba, has castigated members of parliament, saying they approved the AIDS law which is awash with numerous contentious clauses.

“Whereas the law contains important commitments by government for the HIV and AIDS response in Uganda, there are some “poisonous” clauses that could deter all the benefits realised in the fight against the scourge,” she said.

In 2014, Parliament endorsed the HIV and AIDS Prevention law, which came into effect the same year on July 31, when President Yoweri Museveni assented to it. The law seeks to provide for a legal framework geared towards the prevention and control of HIV.

Kaleeba said the contentious clauses (41 and 43) of the law provide for prosecution on grounds of attempted and intentional transmission of HIV, respectively. Among the provisions of the piece of legislation is criminal penalty for risk and intentional transmission of the virus.

The law requires mandatory disclosure of one’s HIV status, failure of which would be regarded as “criminal”, and attempting to or, intentionally transmitting the virus. Failure to use a condom where one knows their HIV status would constitute a criminal offence, making them liable for prosecution.

Speaking during the 29th Centre General Meeting (CGM) of TASO Mulago last week, Kaleeba regretted that these provisions in the law do not only stigmatise and discriminate against people living with HIV but also deter communities from seeking HIV services such as HIV Testing and subsequently HIV treatment.

TASO founder Noeline Kaleebu together with another founder Peter Ssebanja take to the flow during the 29 AGM for TASO Mulago 

She said that the clauses have fueled domestic violence in homes since the couples each blame one another for intentionally transmitting the virus. She said it is naïve to think that the person who tests first is the one who infects the other, it could be the other way round.

“Honestly, how can it be proven that indeed the HIV of the accuser was got from the accused? There is fear that public knowledge of one’s HIV positive status would be used against them due to personal differences,” she says.

She argued that this will ultimately discourage people from testing to know their status fearing that if found positive, their status could be used against them in courts of law at any point in time. It should thus be noted that one who does not know their status cannot be held liable under this law.

“We should avoid creating scenarios where people living with HIV/AIDS are looked at as criminals or potential criminals,” She says. Adding, “People will inadvertently live with the virus without accessing treatment and by the time they get to know their status it will be too late.”

Kaleeba says that both members of the previous parliament and the President (who signed the law) acted out of ignorance, and therefore made a mistake. She prays that the 10th parliament doesn’t have to keep the error, and this is urgent.

She also hailed the appointment of Winnie Byanyima as the new executive director of UNAIDS, saying it has come at the right time as we are closing the chapter of HIV/AIDS. She said Byanyima is an exceptionally good manager, and her appointment will elevate our country.

“She will definitely give a mirage to Uganda even for those who didn’t know Uganda, will come to know the country, whether they like it or not. The world will say the new UNAIDS ED comes from Uganda, and that way our reputation will be elevated. People living with HIV, therefore, need to double their efforts especially on issues of taking their medication,” she said.

“Strict adherence to treatment is where the war is. When you religiously adhere to your medication, your viral load becomes undetectable, meaning you will not transmit to others. Let us be exemplary and merit Bwanyima’s confidence.”

Responding to Kaleeba’s concerns, the guest of honour, Florence Nambozo, who is also woman MP for Sironko and chairperson HIV/AIDS committee, assured over 800 people who turned up for the CGM that she will talk to her fellow members of parliament to make sure that the law is amended.

She said Uganda is making good progress in the HIV fight and urged people living with HIV to stick to treatment since the ARVs are available and free in all government health facilities.

The Centre Program Manager TASO Mulago, Godfry Mafabi revealed that by end of July TASO Mulago had recorded a cumulative total of 7754 compared to last years’ 1145 in care against a target of 8371 to be achieved by September 2019.

Mafabi said that since the last AGM 918 clients were initiated on ART, of these 23 were children and 139 adolescents, and 756 were adults compared to 663 who were started on ART between 17 August- July 18. The suppression rate is currently at 97% surpassing the new national target of 95% target.

However, the institution is still faced with challenges of funding since the time the donors pulled out. The number of staff was also reduced at the facility to 27 from 75, which is a big setback. We are using expert clients to handle new clients, he said.

Canada: Further reform is needed to redress the harms HIV criminalization brings to the lives of women living with HIV

Recommendations on changes to HIV criminalization don’t go far enough

Earlier this summer, the House of Commons Standing Committee on Justice and Human Rights released a report on Canada’s approach to criminalizing those who don’t disclose that they’re living with HIV to sexual partners.

If the Standing Committee’s recommendations are adopted, they could diminish the harms experienced by women living with HIV under Canada’s current approach to criminalization.

But further consideration and consultation are required in order to fully address the harms that the law introduces to the lives of women living with HIV.

The Supreme Court of Canada articulated the current legal approach in 2012. In so doing, the court interpreted consent and fraud provisions of Canada’s sexual assault laws and ruled that people diagnosed with HIV must disclose their status to sexual partners before engaging in sexual acts that pose a “realistic possibility of transmission.”

The court also stated that there is no legal obligation to disclose prior to sex if a condom is used and the person living with HIV has a consistently low measure of HIV in their blood. This legal understanding of a “realistic possibility” contradicts current scientific knowledge that just one of these conditions is sufficient to eliminate transmission risk.

Scientific evidence endorsed by the federal government demonstrates that an undetectable viral load eliminates the risk of sexual transmission of HIV, regardless of condom use. Similarly, there is a negligible risk of transmission when condoms are used properly, no matter an individual’s viral load.

Today, in addition to being inconsistent with current scientific evidence, HIV nondisclosure prosecutions are widely seen as unjust as they can result in harsh sentences for actions that result in little or no harm.

Canadian prosecutors and courts apply the criminal offences of sexual assault and aggravated sexual assault to prosecute cases of HIV nondisclosure. The latter — one of the most serious offences in Canada’s Criminal Code — carries the possibility of a lifetime sentence and mandatory registration as a sexual offender.

Experts discuss the misuse of sexual assault law in prosecuting cases of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Women living with HIV & the law

“The law is a bigger risk to us than HIV.” Sophie

The criminalization of HIV nondisclosure was purportedly intended to protect women while reducing HIV transmission risk by promoting disclosure and safer sex practices. Instead, research indicates that punitive approaches have the opposite effects, many of them significantly harmful.

As health scientists at Simon Fraser University, we work alongside experts on two studies: the Canadian HIV and Women’s Sexual and Reproductive Health Study (CHIWOS), with researchers also from the University of Toronto, McGill University, University of Manitoba, University of Saskatchewan and McMaster University; and the Women, ART and the Criminalization of HIV (WATCH) study with health partners based at McMaster University.

Findings from these studies indicate that criminalization reinforces socially dominant power dynamics, stigma, marginalization and fear experienced by women living with HIV. Specifically, the current legal requirements ignore the dangers women face in both negotiating the use of condoms and status disclosure due to power inequities, particularly in dependent, violent and non-consensual relationships.

À lire aussi : Why a fulfilling sexual life with HIV matters

“I was raped by three [people …] And if I had told [them] I was HIV positive, I would have been dead. I know it. So where does that fit in the picture?” Julie

Women living with HIV who don’t disclose their status when they are sexually assaulted may themselves be convicted of a sexual offence.

Not only does criminalization contradict scientific evidence around HIV transmission risk, it compromises women’s health-care engagement and deters HIV testing since those who do not know their status cannot be prosecuted. Yet access to HIV testing, treatment and support services is scientifically proven to decrease transmission risk.

Furthermore, women who aren’t prosecuted are still harmed by the law. For example, women who have experienced emotional and physical violence by abusive partners may face the threat of partners falsely reporting that the woman didn’t disclose her HIV status.

Living under the fear of being charged has significant consequences for women’s emotional, mental and physical well-being. This is particularly important given the high rates of physical and sexual violence experienced by women living with HIV in Canada.

“It seems like an impossible situation to prove your innocence.” Miranda

These findings were shared with the Standing Committee through expert testimony by members of CHIWOS and WATCH. Such contributions are integral in moving toward an approach to criminalization that considers the realities of people living with HIV.

Women living with HIV and others share their experiences and knowledge of the criminalization of HIV nondisclosure in Canada. From Canadian HIV/AIDS Legal Network & Goldelox Productions.

Recommendations could go further

The Standing Committee’s report makes recommendations in a positive direction, but the recommendations need to go further to reduce harms to women living with HIV.

Firstly, the committee recommends creating a new offence in the Criminal Code for nondisclosure of an infectious disease where transmission happens. This recommendation says prosecutions should never be pursued in cases where: an individual has an undetectable viral load; condoms were used; the sexual partner of a person living with HIV is taking pre-exposure prophylactics; or the sexual act carries a negligible risk of transmission (oral sex, for example).

This suggested requirement of a new offense where actual transmission occurs would minimize, though not fully eliminate, opportunities for the law to be used as a tool of violence against women.

Though the creation of a new offence would address the current problematic use of sexual assault laws, failing to consider the intent of not disclosing is significant. In 2008, the United Nations urged states to limit prosecution of HIV nondisclosure to extremely rare cases of actual and intentional transmission.

Heed women’s experiences

Without including the element of intent, the committee has not fully addressed the vulnerability of women who may unintentionally transmit HIV during their own sexual assault or an unprotected sexual encounter. Given the widespread violence experienced by women living with HIV in Canada, this is a substantial deficiency in the recommendations.

And, given the report’s recognition that criminalization has not achieved its public-health goal of reducing HIV transmission, transmission of any infectious disease should be addressed by public-health mechanisms rather than the law.

Secondly, the report recommends ensuring that the same conditions are applied cross-country to consider whether prosecutions should proceed in cases where people haven’t disclosed that they are living with HIV. This recommendation would address the disparities in prosecutions of HIV nondisclosure and reduce various harms to people living with HIV.

Finally, the report recommends a review of all past convictions for HIV nondisclosure and increased access to anonymous testing. These measures are significant in beginning to redress the harms introduced by the current legal approach.

But to fully do that, Canada must heed all the experiences of women living with HIV.

US: Charges of HIV exposure for spitting, despite absence of risks, prove that Georgia needs to modernise its HIV laws

HIV-positive man’s arrest for spitting called ‘plain and simple discrimination’

A 31-year-old man in Rome, Ga., was charged with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its HIV laws.

Authorities said JS was swearing at people and making obscene gestures near the intersection of Maple Road and Park Road on Aug. 25, according to the Marietta Daily Journal. S allegedly spat on officers after being apprehended by the Floyd County Police Department.

S was charged with criminal trespass, two misdemeanor counts of disorderly conduct, three misdemeanor counts of willful obstruction of police officers and three felony counts of assault on police officers by someone with HIV, according to the Floyd County Sheriff’s Office. He is being held without bond in the Floyd County Jail.

HIV cannot be transmitted by spitting, according to the Centers for Disease Control & Prevention. S’s arrest highlights why Georgia needs to modernize its HIV laws, according to Nina Martinez of the Georgia HIV Justice Coalition.

“In 2019, it’s not breaking news that saliva does not transmit HIV,” she told Project Q Atlanta. “And yet, the punishment for a person living with HIV who spits on a police officer is potentially 20 times greater than that for someone not living with HIV who commits the same offense. This is state-sanctioned discrimination, plain and simple.”

Malcolm Reid, another member of the Georgia HIV Justice Coalition, agreed with Martinez.

“Although we don’t know much about this specific case, we do know that there is no chance of HIV transmission through spit,” he said. “This proves once again that the laws in Georgia need to catch up to science. HIV is not a crime.”

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure. Activists and lawmakers have tried for years to modernize state law by decriminalizing HIV. 

A Republican lawmaker introduced an HIV decriminalization bill on the final day of this year’s legislative session. It will be back in the 2020 session in January.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail nearly two months later on a $3,000 bond, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

Uganda: Recent case of woman, unjustly jailed for allegedly injecting a baby with HIV, highlights the need to act against HIV criminalisation

Woman Who was Wrongfully Jailed for Premeditated HIV Infection Speaks Out
“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

By Kampala Post Reporter

On the evening of August 29, 2019, Sylvia Komuhangi walked out of the Gulu High Court premises accompanied by a female prisons security official. She had a smile plastered on her face. It was not a beaming smile. It was a restrained smile, the kind of smile that projects more relief than joy.

The 32-year-old secondary school teacher, who was wrongfully sentenced to two years in jail for injecting a baby with HIV-infected blood, walked a 50-meter stretch to the parking lot area where her lawyer, Immaculate Owomugisha waited. Komuhangi and Owomugisha shook hands, hugged and clasped their hands around each other’s waist for a while. The journalists present at court took pictures of the two, and then Owomugisha stepped back to let Komuhangi share her thoughts with the media.

With half a dozen video cameras and audio recorders in position, Komuhangi responded to the first question asking how it felt to regain her freedom after eight months in Kitgum Central prison, 805 kilometers away from her home in Rukungiri.

“I feel so happy,” she said. “It was so difficult.”

A Friendly Visit Gone Wrong

On December 27, 2018, Komuhangi was arrested and charged at Kitgum Magistrate’s Court with the offence of committing a “negligent act likely to spread disease contrary to Section 171 of the Penal Code Act of the Republic of Uganda.”

During her trial, at the Magistrate’s Court, the prosecution stated that at about 9 P.M. on December 26, 2018, Komuhangi carried the alleged victim away from her babysitter to the bedroom and then returned later, with the baby crying.

The prosecution continued that when the mother, Eunice Lakot, examined her baby, she found swellings in both armpits. She took the baby to Kitgum hospital for diagnosis, where doctors reportedly confirmed that the swellings were caused by injections. Consequently, a medical professional tested Komuhangi for HIV, and she was found positive. Next, the child was given Post-exposure Prophylaxis (PEP), an antiretroviral medication that prevents infection to anyone exposed to HIV during the first ninety-six hours. Subsequently, Komuhangi was arrested.

After regaining her freedom, Komuhangi narrated that she had traveled to Uganda’s northern region from the Kampala for a tour in late December 2018, and spent several nights at a friend’s house in Kitgum Town. After a visit to the Kidepo Valley National Park, she returned to Kitgum Town to find her friend’s home surrounded by local authorities. “We were arrested there and then,” she narrates.

“I spent two weeks in custody asking [to be released on bond], but they could not even bond me out, saying I was a non-resident. When we went to court, I asked for bail, and they refused. They refused to give me bail until they convicted me.”

The conviction was handed out by the Chief Magistrate of Kitgum, Hussein Nasur Ntalo, on Thursday, July 4th. On Komuhangi’s release, Lakot, the mother of the baby, shared that the most recent results showed that her baby is HIV negative. Lakot, nevertheless, said she was not happy with the High Court’s ruling, but the baby’s maternal grandmother, Rose Oryem, said they would not challenge the court’s decision.

Komuhangi’s story was covered by leading media houses in the country, including the Daily Monitor, the country’s leading independent media house. It caused a public uproar in a country whose laws make it a crime to “willfully and intentionally” transmit HIV and also give the legal right to medical staff to disclose a patient’s HIV status to others without his or her consent.

In fact, Komuhangi is not the first convict as a result of those laws. In 2014, a 64-year-old nurse in Kampala, Rosemary Namubiru, was accused of injecting a toddler with her HIV-positive blood in the process of administering treatment. Namubiru was put on trial amid pressure from several local and international organisations, including the Global Commission on HIV and the Law, who castigated the quality of the media reporting in the immediate aftermath of her arrest.

“The media engaged in unabashed and unverified sensationalism. Rosemary was branded a ‘killer,’ guilty of maliciously and intentionally attempting to transmit her own HIV infection to a child,” said the Commission’s statement.

“Subsequent to those allegations, the baseless rumour-mongering escalated: various news reports branded Rosemary a fiendish serial offender; a nurse who was mentally ill; a nurse without credentials…. Sadly, we’re convinced that the charge was originally laid because of the media frenzy,” added the statement.

Taking Action Against HIV Criminalization

When Komuhangi’s case hit the media headlines, it took a similar tone to that of Namubiru. As a result, it caught the eye of the Uganda Network on Ethics, Law and HIV/AIDS (UGANET), a non-governmental organisation whose goal is to advocate for the development and strengthening of an appropriate policy, legal human rights and ethical response to HIV/AIDS in Uganda.

Owomugisha, who is the UGANET head of advocacy and strategic litigation, says cases that involve HIV are not subjected to sufficient rigor, with sentiments often carrying the day at the expense of proper investigation, prosecution, and objectivity in court.

“Most convictions are based on unfair, inaccurate and overblown facts,” she says. “The media usually joins to hype up stories [and] this sensationalism crowds out good judgment, resulting in a miscarriage of justice.” Speaking particularly about Komuhangi’s case, Owomugisha said the media continued a pattern of HIV criminalization by condemning the suspect even before the initial trial.

“Several media houses were set on the loose name-calling such as “murderer and killer.” The media buzz was everywhere, including on the radio airwaves for days. This undressed Komuhangi of all dignity,” she said.

UGANET decided to offer legal representation to Komuhangi, resulting in a swift appeal against her conviction. Within two months from the first time the appeal was first lodged before the Gulu High Court, she had regained her freedom. Justice Stephen Mubiru, who handled the appeal, quashed the conviction, saying that forensic tests showed that DNA traces found on the cloth that Komuhangi used to wrap the baby belonged to her but did not contain any blood.

“I could not find any connection between her piece of cloth and the blood said to have been injected into the baby because the swelling found on the baby could have been a mere rash,” he added, according to a detailed report in the Daily Monitor newspaper.

Another of Komuhangi’s lawyers, Louis Odong, said the ruling sent a message to people who criminalize HIV victims not to engage in the practice while Owomugisha added that the court’s decisions had restored “dignity to Sylvia Komuhangi and many like her.”

“We commend the court decision for setting an example that if courts scratched below the surface news, they would realize HIV positive status alone does not equate to malicious intent,” she said.

The Executive Director of UGANET, Dora Kiconco Musinguzi, whose organisation works with 32 other HIV law and human rights groups, said the criminalization of people living with HIV, not only undermines the HIV response by compromising public health and human rights but that there is also no evidence of benefit from those laws.

“As a community of HIV actors, we remind the nation that we cannot end AIDS, or reach epidemic control with HIV criminalization coupled with heightened HIV discrimination. Human rights and dignity need to be accorded to all. We need to stop stigma and end HIV criminalization,” she stated.

Kiconco said that in light of court’s decision, the community of people living with HIV and organisations that UGANET works with recommend that the Constitutional Court should fast track the hearing of Petition No. 24 of 2016, through which their issues were presented to the country’s second-highest judicial organ for interpretation.

“More lives continue to be adversely affected by the HIV criminal law. Justice delayed is justice denied,” she added. Kiconco also called on Parliament to re-visit the HIV criminal laws with a view to law reform as “some of the laws are unfair, vague and will encourage trumped-up charges often.”

She said the law had been diverted from its original intent to create an environment where HIV is criminalized and where complications arise for persons living with HIV. The final appeal from Kiconco was directed to actors at all levels of the justice sector to increase rigor while handling HIV-related cases and to the media fraternity to exercise restraint while reporting on matters regarding the HIV criminal law.

“Our Constitution espouses a key principle – innocent until proven guilty. Abusing victims with names such as ‘monster and murderer’ is wrong. This jeopardizes their chance for a fair hearing,” she emphasized.

US: Laws should not penalise marginalised populations that might lack access to drugs, instead HIV exposure should be decriminalised altogether unless there was clear intent to infect someone

Sex with HIV still a crime? Updated laws divide advocates

ATLANTA (AP) — As Sanjay Johnson describes it, his sexual encounter with James Booth on Oct. 2, 2015, was a one-night stand. But it would bind the men inextricably two years later, when Booth walked into an Arkansas police station and accused Johnson of exposing him to HIV.

Little Rock prosecutors pursued a criminal charge against Johnson even though a doctor said he couldn’t have transmitted HIV to Booth because he was on medication that suppressed his virus.

“It really tested me just to keep going,” Johnson said about his criminal case, which ended this year. “Last year, I thought of suicide.”

Booth said he deserved to know about Johnson’s HIV status regardless of any medical treatment.

“I could have protected myself,” he said.

Roughly 20 states have laws like the one in Arkansas that make it a crime for people with HIV to have sex without first informing their partner of their infection, regardless of whether they used a condom or were on medication that made transmission of the disease effectively impossible.

Health experts and advocates for HIV patients say that rather than deterring behavior that could transmit the virus, such laws perpetuate stigma about the disease that can prevent people from getting diagnosed or treated.

North Carolina and Michigan recently updated their HIV policies to exempt HIV patients from prosecution if they’re on medication that has suppressed their virus. A Louisiana law that took effect in August 2018 allows defendants to challenge a charge of exposing someone to HIV by presenting evidence that a doctor advised them they weren’t infectious.

Many advocates say the new policies create an underclass of people who lack access to drugs and are therefore still vulnerable to prosecution. They say states should instead decriminalize HIV exposure altogether unless the person intends to infect someone.

“We shouldn’t be creating laws that create additional strata and divisiveness among already marginalized populations,” said Eric Paulk, deputy director of Georgia Equality.

The fight comes as the Trump administration aims to eradicate HIV — the virus that causes AIDS — by 2030.

The laws’ defenders point to statistics showing tens of thousands of new HIV diagnoses each year and say that although the disease may not be a death sentence anymore, it still requires a lifetime of expensive medical treatment.

The Arkansas attorney general’s office filed a brief last year in Johnson’s case rejecting the argument that criminalizing HIV exposure no longer served any purpose.

“HIV remains a serious threat to public health,” it wrote.

In Booth and Johnson’s case, they met through a gay dating app.

According to Booth, Johnson denied he was HIV positive before they had unprotected sex. Johnson, 26, said he didn’t remember discussing his HIV status.

A plea deal that prosecutors offered Johnson shows officials were mindful of advances in the science around HIV, said John Johnson, chief deputy prosecutor in Pulaski County. The deal allowed the accused man to avoid prison time and have his record expunged.

But prosecutors also wanted to promote the importance of disclosing HIV to potential sexual partners, he said.

“The flip side of this coin is that there is a victim to this crime,” the prosecutor said.

People with HIV who are on antiretroviral drugs that keep their viral load below a specific threshold have “effectively no risk” of transmitting HIV, according to the federal Centers for Disease Control and Prevention. But as of 2016, only a little more than half of the estimated 1.1 million people living with HIV in the U.S. were virally suppressed, the CDC says.

Sarah Lewis Peel, spokeswoman for North Carolina’s Department of Health and Human Services, said in an email that her state’s new policy ensures HIV prevention and control strategies are “firmly rooted in science.” Responding to criticism that the change leaves some people behind, she listed multiple programs that cover HIV medication.

Critics say states should decriminalize HIV exposure altogether unless there’s intent to infect someone. That would reflect the reality that HIV is manageable and not easy to contract, dozens of advocacy groups said in a July 2017 consensus statement.

Georgia may be headed in that direction. Pending legislation would require intent to transmit HIV for a prosecution.

It’s not clear how many people have faced prosecution under HIV laws around the country, but data from two states analyzed by a think tank at the University of California, Los Angeles, School of Law indicate they aren’t isolated occurrences. Florida and Georgia authorities made nearly 1,500 arrests on suspicion of HIV-related crimes from the 1980s through 2017, hundreds of which resulted in convictions, according to the Williams Institute.

Booth said he tested positive for HIV after his encounter with Johnson. Johnson’s doctor, Nathaniel Smith, told The Associated Press that Booth couldn’t have contracted HIV from Johnson because a lab test around the time of their encounter showed Johnson’s viral load was too low. Smith, who testified in Johnson’s case, also directs the Arkansas Department of Health.

Johnson pleaded no contest in February to aggravated assault as part of his deal with prosecutors and was sentenced to five years’ probation. He would have faced up to 30 years behind bars and the possibility of having to register as a sex offender had a jury convicted him of the HIV-exposure charge.

He has a new job helping people manage their diets but said his arrest and prosecution left a scar.

“It did make me more closed off,” he said.

Booth said he has sympathy for what Johnson went through but stands by his decision to tell police.

“It was something that needed to be done,” he said.

Copyright © 2019 The Associated Press

Jamaica: “Criminalisation related to HIV is a seductive distraction from what we really should be focusing on”

Is Criminalising HIV Helpful?

According to the 2017 Knowledge, Attitudes and Behaviour Survey by Jamaica’s Ministry of Health, one out of every five persons with multiple sexual partners never used a condom the last 10 times they had sex.

Fortunately, due to certain features of HIV and of our immune system, HIV does not always get transmitted every time someone is exposed. According to a top scientific journal, there is a one in 300 chance of the virus being passed from a man with HIV to a woman during sex. The overall risk goes up with each additional sexual act. The possibility exists that infection can occur the first time you have sex. The risk increases in certain situations, including the presence of sexually transmitted infections like syphilis and the time period just after becoming infected.

Avoiding HIV testing, some persons wrongly presume themselves to be infected based on the possibility that they had been exposed, or they wrongly presume themselves to be negative if a partner tests negative. No public-health initiative, indeed no law, obviates the importance of individuals taking responsibility for their health, embracing their right to pleasurable sex, yes, and empowered to seek out accurate information, getting tested regularly, and using protection.

Because we have become so accustomed to all the things that are wrong with our health system and legal system, we assume a state of powerlessness and thereby continue to embrace the status quo. Unfortunately, the set-up of some clinics is such that your diagnosis is made obvious by virtue of walking into a particular room.

The absence of anti-discrimination laws contributes to unfair treatment of persons living with HIV who are pressured out of their jobs, with a downhill spiral of their economic and health status. There is increasing access to redress for those who experience discrimination, and stigma from healthcare workers may be decreasing, but not nearly enough. The implementation of evidence-based prevention measures is slow, and I am hard-pressed to think of anything that could justify the withholding of such measures, especially in light of the fact that HIV infections have not stopped, many persons with HIV are deterred from accessing treatment, and majority of those in care have not attained optimal health status.

Criminalisation related to HIV is a seductive distraction from what we really should be focusing on.

INTERNATIONAL PRECEDENTS

In Scotland, a 20-year old man was convicted based on similarities in the genetics of HIV in his blood sample and his wife’s sample. His wife had reportedly contracted HIV from him during sexual intercourse in the two to three months right after he had become infected during a prior incarceration. The risk of transmitting HIV is 30 times greater in the first few weeks of becoming newly infected due to the large amount of HIV circulating in the body before the immune system manages to get a temporary hold on this new germ.

In Canada, a man was convicted under existing laws, charged with assault with a deadly weapon, after having sex without a condom with at least two women, despite a nurse’s insistence that he should disclose his HIV status. The Crown found that under Section 268 of Canada’s Criminal Code, the man’s sexual partners’ lives had been endangered, and no transmission needed to have actually occurred.

More than 60 countries have had prosecutions related to exposure, non-disclosure or transmission of HIV. One-half of these countries have done so under pre-existing laws, the others under specific legislation related to HIV. Adequate protection and remedies can be found in existing criminal laws, and the stigma of HIV-specific criminalisation can be avoided.

PUBLIC HEALTH AND THE LAW

Jamaica’s Joint Select Committee to review the Sexual Offences Act recommended that the law “should be amended to make it a criminal offence for someone to wilfully or recklessly infect a partner.” Concerns have been voiced as to whether criminalising HIV transmission will discourage persons from knowing their status.

According to researchers at the University of Edinburgh, a 25 per cent drop in HIV testing could result in a 50 per cent increase in HIV infections. Persons may be deterred from testing as they may believe that not knowing their status means that they are not at risk of being charged under the proposed law.

Although testing may be available virtually everywhere, stigma and privacy concerns are serious impediments to HIV testing being truly universally accessible.

During discussions, it is not always clear what exactly it is being proposed should be criminalised. What is the evidence to be relied on to prove that transmission occurred from person A to person B? Techniques for proving transmission from one person to another still require standardisation, are costly, and not widely available.

SCIENCE AND THE LAW

Another concern is whether a laboratory could be served a warrant, demanding that it hand over blood samples from patients. It may be possible to deduce ‘clusters’ of individuals linked by similarities in the genetic make-up of the HIV virus. Based on such clusters, individuals could become stigmatised based on assumptions that they belong to a particular social sexual network, for example, sex work or intravenous drug use, be it true or not. Information about the genetic make-up of a human being can be deduced based on unique ‘footprints’ left on the virus by an individual’s immune system.

Currently, this may seem like innocuous information, but if a particular genetic feature is subsequently found to be linked to one’s risk for cancer or lifespan, for example, one can imagine this information being (mis)used to influence insurance premiums or reproductive decisions.

Further, there is scientific proof that HIV is not transmitted from someone living with HIV who sticks to their antiretroviral medications resulting in totally suppressed HIV virus to the point where it is undetectable in the blood and semen and other body fluids.

The World Health Organization has adopted this as an important strategy in stopping the HIV epidemic. There remains room for improvement in raising awareness of these positive developments among patients, clinicians, and advocates, not to mention lawmakers.

Discussions about criminalisation of HIV can easily fall trap to fearmongering. A fundamental question is whether such legislation is helpful or would pose a hindrance to getting the thousands of Jamaicans who do not know their status to test and to retaining those who are receiving care.

[The views expressed are my own, and not necessarily those of any affiliate past or present.]

Dr White is medical director at Para Caribe Consulting Medical Doctors. Email feedback to yourhealth@gleanerjm.com and yohann.white@caribewellness.com; Social Media: @CaribeWellness.

US: Michael Johnson’s release has reignated calls to overhaul HIV exposure laws.

He Emerged From Prison a Potent Symbol of H.I.V. Criminalization

Last week, Michael L. Johnson, a former college wrestler convicted of failing to disclose to sexual partners that he was H.I.V. positive in a racially charged case that reignited calls to re-examine laws that criminalize H.I.V. exposure, walked out of the Boonville Correctional Center in Missouri 25 years earlier than expected.

Mr. Johnson, 27, was released on parole on Tuesday after an appeals court found that his 2015 trial was “fundamentally unfair.” His original sentence was longer than the state average for second-degree murder.

Reached by phone two days after his release, Mr. Johnson said he was rediscovering freedom through convenience store snacks, cartoons and his cellphone.

“I’m feeling really, really good,” he said.

But there were periods when he felt intimidated by people who did not believe he had a right to stand up for himself, he added.

His case, which encompasses a half-dozen years of court appearances, unflattering headlines and stints in solitary confinement, has galvanized advocates working to update laws that they say further stigmatize and unfairly penalize people with H.I.V.

Mr. Johnson, who was a black, gay athlete at Lindenwood University in St. Charles, Mo., has become a public face of people who are disproportionately affected by the virus and entangled in the criminal justice system. (If current trends continue, about half of all black men who have sex with men in the United States will eventually learn they have H.I.V., according to the Centers for Disease Control and Prevention.)

Mr. Johnson’s legal troubles began in 2013, when he was arrested after a white man he had had consensual sex with told the police he believed that Mr. Johnson had given him the virus.

Five other men, three of them white, would later testify that Mr. Johnson had not only failed to disclose his H.I.V. status before engaging in consensual sex, but had willfully lied about it.

Mr. Johnson has publicly maintained that he informed all six men he was H.I.V. positive before having sex without a condom.

After a weeklong trial in 2015 in St. Charles County, a conservative, predominantly white area northwest of St. Louis, Mr. Johnson was convicted on multiple felony counts, including recklessly infecting another with H.I.V., which carries a 10-year minimum sentence.

The jury sought the maximum penalty of 60½ years even though prosecutors offered no genetic evidence that Mr. Johnson had infected any of his partners, according to BuzzFeed News.

The judge ultimately sentenced him to 30 years in prison.

Today, some of the people who put him in prison say the sentencing and parts of the prosecution were mishandled.

“We’re still operating under laws that were based on views that are outdated and are proven inaccurate by science,” said Tim Lohmar, the St. Charles County prosecuting attorney, whose office’s handling of the trial has been criticized.

Missouri is one of about 34 states with laws that make it a crime to expose another person to the virus without disclosure or add additional penalties for people with H.I.V. who are convicted of separate offenses, such as sex work, according to the nonprofit Center for H.I.V. Law and Policy. In six states, a person may be required to register as a sex offender if convicted of an H.I.V.-related crime.

Many of these laws were written in the 1980s and 1990s under a fog of fear about the virus and how it was transmitted, and before the advent of effective treatments. In those years, Magic Johnson’s sweat on the basketball court and Greg Louganis’s blood on a diving board panicked fans and teammates. Parents pulled children from school in 1985 because an H.I.V.-positive boy with hemophilia was in their seventh-grade class.

Back then, an H.I.V. diagnosis meant debilitating symptoms and almost certain death.

For the last five years, Steven Thrasher, a journalism professor at Northwestern University, has chronicled Michael L. Johnson’s case for BuzzFeed News and recently completed his doctoral dissertation on race and H.I.V. criminalization.

Dr. Thrasher, who greeted Mr. Johnson outside the correctional facility on Tuesday, said he was first drawn to the case because of its parallels with the history of black sexuality and lynching.

“Black men would just get lynched anytime they had sex with white women in the Reconstruction period,” he said. “There was no consensual sex that could be had between white women and black men.”

Mr. Johnson’s wrestler’s body — he called himself “Tiger Mandingo” online — was a source of fascination for some of his partners. But when Mr. Johnson tested positive for H.I.V., Dr. Thrasher wrote, he became “the perfect scapegoat.”

“It was not that he had no agency or responsibility in the story,” Dr. Thrasher said on Thursday, but “he was really holding all of this anxiety and all of this worry about AIDS and stigma and H.I.V. and queerness in America all on his shoulders.”

Mr. Lohmar, the St. Charles County prosecutor, said on Thursday that “nothing about the trial was unfair,” except for his team’s failure to present certain evidence to the defense in time.

Because prosecutors did not disclose some evidence to the defense until the morning of the trial — recorded phone conversations Mr. Johnson made while in the county jail — an appeals court decided to overturn the conviction 17 months after the original sentencing.

Instead of a new trial, Mr. Johnson, who previously had a clean criminal record, accepted a plea deal in which he did not admit guilt but agreed to a 10-year sentence.

Eric M. Selig, the lawyer who negotiated on Mr. Johnson’s behalf, said the original sentence was disproportionate to the crime.

“We don’t charge people with other incurable diseases, like hepatitis, with a criminal offense for exposing others,” he said.

During his incarceration, Mr. Johnson wrote thank-you notes to friends and strangers who had written to him in support, which he said helped him deal with homophobia in prison and self-doubt.

“You lose your confidence,” he said. “I kept every single letter.”

In theory, H.I.V. exposure laws are meant to encourage H.I.V.-positive individuals to disclose their status before having sex, and to practice safer sex, with the ultimate goal of preventing the spread of the virus.

But there is no evidence that these laws have reduced risky behavior or encouraged disclosure, said Catherine Hanssens, the executive director of the Center for H.I.V. Law and Policy, which provided legal support for Mr. Johnson’s case.

In the eyes of the law, an H.I.V. diagnosis is conflated with malice, she added.

“These laws effectively treat an H.I.V. diagnosis itself as evidence that the person acted with bad intentions when sex or other types of physical contact are involved in a crime,” she said.

Additionally, many laws do not reflect recent treatment options that can give patients a life expectancy almost as long as the general population. A pill taken daily can almost eliminate transmission, experts say. But there remain large barriers to eradicating the virus, including the high cost of antiretroviral drugs, access issues, medical mistrust and other social barriers in poor and black communities.

While some states, like California, have reduced penalties for H.I.V. exposure, Missouri has one of the most punitive laws in the country. This year lawmakers introduced two bills into the Legislature that would have slightly reduced the penalty, but they never made it to a vote.

Mr. Lohmar said he learned of Mr. Johnson’s release after receiving a call from one of the witnesses in the trial, who was upset that he was not notified.

Mr. Johnson said he planned to return to college, learn a second language and share his story through advocacy organizations like the Ryan White Planning Council in Indiana. Younger people especially need to learn about the virus to prevent it from spreading, he said.

“You can’t do it without education.”

Alain Delaquérière contributed research.

Meredith McFadden explores the ethical issues of criminalising health statuses

The Criminalization of HIV Transmission and Responsibility for Risky Behavior

Michael Johnson was released from prison on July 9th after serving five years of his original sentence of thirty years. He was in prison for failing to disclose his HIV status to his sexual partners and his sentence was longer than the state average for murder. The conviction covered transmitting HIV to two men and exposing four more to the virus, despite “an absence of genetic fingerprinting to connect him to the other men’s HIV strains.”

Johnson’s trial highlights the racist and homophobic undertones of the continued fear around HIV exposure. The images shown to the jury emphasized the darkness of Johnson’s skin, his muscularity (he was a star football player), and that two-thirds of the allegedly exposed men were white. The racist stereotypes regarding the sexuality of black men hurt Johnson’s chances in this trial, which were already slim given cringe-worthy missteps by his court-appointed public defender who claimed her client was “guilty until proven innocent.”

In the years since the trial and conviction, Johnson’s case has been a focal point of the discussion of the sexualization of black bodies and the inherent racism and homophobia in our criminal justice system. HIV criminalization laws disproportionately affect non-straight black men. Beyond these issues of justice, there is also the family of questions of the ethics surrounding sexual health. Johnson’s case is one of many where sexual relationships and health statuses are interpreted criminally, and the laws surrounding HIV transmission are not structured to reflect current empirical understandings of how the disease spreads. 

Empirical evidence regarding HIV criminalization laws suggests that having such laws do not affect disclosure of HIV status to partners or decrease risk behaviors. A key component to the sexual ethics debate, arguably, is that people who are HIV positive can be treated to the point that it is an empirical impossibility that they transmit the virus to sexual partners. When medicated, people with HIV can have an undetectable viral load, which means that there isn’t enough of the virus in the person’s system to turn up on standard tests. This makes it basically no more likely for them to transmit HIV to their partners than a partner without HIV. 

In light of this empirical reality, how should we ethically understand the risk of sexual behaviors? In recent years, some states have taken steps to make their laws more in line with the health reality of HIV transmission in particular: California has a bill that lessens the offense of knowingly transmitting HIV to a misdemeanor and a similar bill has been proposed in North Carolina. An attorney from the office that originally prosecuted Johnson in Missouri has become a supporter of a recent failed bill that would reduce punishment for knowingly expose someone to HIV in that state.

Knowingly exposing someone to risk is an ethically interesting area. There are cases where we knowingly expose people to risks and it seems ethically unproblematic. A bus driver exposes their passengers to risk on the road. A tandem jumper exposes their client to risk diving out of a plane. A friend exposes a guest to risk cooking for them, in operating ovens, in attempting to achieve safe temperatures and adequate freshness of ingredients.

There are two major ethical principles at work here, because knowingly exposing someone to risk is putting them in a position of potential harm. Serving a dinner guest a meal that you have reasonable expectations of harming them is an ethically problematic action, and we would hold you responsible for it. 

In similar yet ethically unproblematic cases, it could be that the case satisfies an ethical principle of respecting someone’s autonomy – the person consented to take on the risk, or the risk is part of their life-plan or set of values. For example, your guest would have to consent to the risk if you are serving your guest the famed potentially poisonous fish dish from Japan, fugu, where the smallest mistake in preparation could be fatal.

Another scenario where posing potential harm to someone could be unproblematic is under circumstances where the risk is so minimal or typical that if harm were to result, we wouldn’t consider another morally culpable. If you are serving dinner to a group of people buffet-style in the winter, this increases everyone’s to the risk of catching colds and flus from one another but typically we don’t’ take this to be ethically problematic. These two principles are at play when considering the risk of sexual behaviors. 

There are reasons to take on risks to one’s health and well-being, and we