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HIV Is Not a Murder Weapon: Racism and the Criminalization of AIDS

(Image: Jared Rodriguez / Truthout)

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“HIV has [had] a negative effect on my life and my family. I never want anyone to have to go through this type of pain,” Michael Johnson wrote in a letter to Truthout from his prison cell in rural Missouri.

In the 1980s, an HIV diagnosis amounted to a death sentence. Now, with access to the right medical care, someone with HIV can live as long as anyone else. So when Johnson comments on the negative effects of the disease, he’s mostly talking about the stigma and laws that criminalize people who are HIV-positive.

At 23 years old, in July 2015, Johnson received a sentence of 30 and a half years in prison for allegedly transmitting and “exposing” others to HIV. He’s now confined a thousand miles away from his family in Florida. That family includes his son, Michael Jr., who turns 4 in October, and whom he has not seen since he was first jailed in 2013.

“The State of Missouri was able to convict Michael Johnson without having to prove that he had any intent to infect his sexual partners.”

Johnson was raised by a single mom with four older brothers. “Sometime was tight but we made it through the hard times,” he wrote to Truthout. “I also suffer from dyslexia and learning disability so I worked extremly hard to graduate. I knew education was the only way to have a positive future for me and my family” [sic].

Johnson has just begun the years-long process of appealing his case using a public defender (he can’t afford a private attorney), while a coalition of activists out of the Bay Area in California, who originally learned about his story through social media, organized for his freedom. Several US-based LGBT and HIV organizations have also composed a joint statement denouncing Johnson’s criminalization, writing:

The State of Missouri was able to convict Michael Johnson without having to prove that he had any intent to infect his sexual partners nor demonstrate that he was in fact the person who transmitted HIV to his sexual partners. We are outraged by the criminalization, arrests and imprisonment of those prosecuted under HIV criminalization laws. We will continue to fight for Michael, to repeal HIV criminalization laws, to dismantle the Prison Industrial Complex, and to end the stigma and violence perpetrated upon people living with HIV by these laws.

Black is not a crime.

LGBTQ is not a crime.

HIV is not a crime.

Others showed no compassion for Johnson. Many mainstream media writers practiced a sort of vigilante journalism when talking about the case, before and after the court’s decision. The Washington DC Daily Caller went for shock value, titling its report “Barebacking HIV-positive college wrestler made 32 videos of his exploits,” then went on to call a post on Johnson’s Facebook page “grossly ungrammatical,” without mentioning that Johnson has dyslexia. The New York Daily News started its report off stating Johnson “recklessly infected gay sex partners with HIV for months after he was diagnosed.” And popular gossip blog Madame Noire said Johnson was indicative of a new frenzy, calling “infecting people with HIV … an ongoing trend.”

Thirty-nine out of 52 of the initial jury pool members in Johnson’s case called being gay a “sin.”

The trial jury didn’t believe Johnson was the one to infect Chuck Pfoutz. But for various reasons, including a BuzzFeed article that “outed” Pfoutz as an alleged victim of Johnson, and Pfoutz’s subsequent mini-media blitz that included self-publishing a book he said he wrote in all of eight hours titled A Victim Speaks, Pfoutz became the victim’s voice in the story.

In A Victim Speaks, Pfoutz details how he believes he was conned into having sex with Johnson, who went by the screen name “Tiger Mandingo” on popular gay hookup apps like Grindr. After a date night out at a movie, Pfoutz invited Johnson back to his place, and one thing led to another.

After his name became associated with the case via the BuzzFeed exposé, Pfoutz said he feared for his life. Describing St. Charles, Missouri, as a conservative town, Pfoutz “felt like at any moment, people were going to come to my house and do something to me,” he told the HIV news blog Imstilljosh.

“Crime,” “Justice” and Stigma

Johnson isn’t the only Missourian to be recently found guilty and given a long prison term for allegedly spreading HIV. Also in July, David Lee Mangum of Dexter, Missouri, was sentenced to 30 years for “exposing” two other people to HIV; Robert Smith of St. Ann could face a similar sentence in an entrapment case in which undercover police responded to hookup ads on Craigslist that Smith had posted, according to The Associated Press, “to contact potential victims.” The Centers for Disease Control and Prevention (CDC) reports that Missouri is one of 33 states where simply “exposing” someone to HIV is against the law. The Center for HIV Law and Policy, which will offer pro bono help with Johnson’s appeal, estimates that about 200 other people have been convicted in cases like Johnson’s since 2008.

Calling Missouri “ground zero” for “overly broad HIV criminalization and overly zealous law enforcement,” the HIV Justice Network’s Edwin Bernard suggests that entrapment – and an unjust system – is a far more serious issue than Johnson’s alleged crimes.

Thirty-nine out of 52 of the initial jury pool members in Johnson’s case called being gay a “sin.” Eleven out of the dozen jurors were white. They spent a little over two hours deliberating the case, a painfully short amount of time for a decision that would decide decades of a young person’s life.

“It’s [the] criminalizing [of] Black queerness and disability that puts so many of our people in jail.”

Like 80 percent of defendants nationwide, Johnson couldn’t afford a private attorney, so he got a public defender. For many reasons, including huge caseloads, public defenders have very low success rates. (As many as 90 to 95 percent of defendants with public defenders plead guilty.)

“These laws are so out of date, and they’re not in line with current scientific knowledge, to the point that Obama announced [in July] a national HIV strategy to reform these laws,” said Tyrone Hanley, a lawyer with the National Center on Lesbian Rights. “There’s no evidence that these laws, which are built around the HIV panic of the 1980s, actually have any impact on HIV transmission rates.”

“Some people still believe that HIV is still a death sentence, but in most cases, with access to the right health care, you can live as long a life as anyone else,” he added. The laws were created “during an era when the government began to overcriminalize conduct” in general, “and began sending more people to jail.” (According to The Sentencing Project, imprisonment rates in the United States have increased about 500 percent between 1970 and 2013.)

It’s a sentiment mirrored by health professionals like Kentaro Kaneko, who works at the St. James Infirmary in San Francisco. One of Kaneko’s primary jobs is administering HIV tests to the sex workers who make up many of the infirmary’s clients. His voice is the first one they’ll hear as they receive news on whether or not their tests came back positive.

“Poz” Shaming

HIV criminalization laws “make my job harder,” Kaneko said. “And they don’t make the world safer, precisely because a lot of these laws are the reason people are prevented from going out and getting tested.” People may suspect they have HIV, “but they don’t want to confirm it because then they fall into this legal trap,” like Michael Johnson did. “It’s particularly true in populations that are more stigmatized, like African American or Latino populations. For a lot of people, it’s a cost-benefit analysis, and they don’t get tested because of the legal ramifications of knowing their status.”

Both Hanley and Kaneko agree that access to medication like PrEP (marketed as Truvada), which HIV-negative people take daily to prevent infection, is largely determined by someone’s gender, race and financial and geographical situation. “I believe if we were to look at who has the most access to PrEP and health care in general,” Kaneko said, “we would see that the pattern of stigma is similar, with folks of color and trans individuals still carrying a much higher burden.”

Then there are the social ramifications that come with being out about having HIV. Online gay dating and hookup profiles are littered with tags like “No Poz” [poz meaning “positive”], “clean” and “negative for negative.” That kind of thing “can be really damaging for HIV-positive folks,” Kaneko said.

Pile on top of that the judgment from people within the gay community that PrEP is “carte blanche to be promiscuous,” said Kaneko. “Are we going to create a culture that we don’t want to foster?” goes the argument against PrEP, based largely around religious ideas about chastity.

One of the biggest opponents to the PrEP rollout was Michael Weinstein, president of the mega-nonprofit AIDS Healthcare Foundation (AHF). In “a debate about respectability,” Weinstein made a judgment call about other gay men’s sexuality, according to Kaneko. AHF took out ads in big media outlets calling PrEP use a “war on prevention.” Doctors around the country continue to refuse to prescribe PrEP because of their own moral objections.

Not Black and White

According to HIV decriminalization advocates, the effects of racism in cases like Johnson’s can’t be overstated. American Civil Liberties Union (ACLU) lawyer Chase Strangio, the attorney who represents WikiLeaks whistleblower Chelsea Manning, further explained to Truthout how being Black damaged Johnson’s chances from the beginning:

For people living with HIV and others in the community who face criminalization for simply existing, the mechanisms that target Black and Brown bodies for incarceration are decimating people’s chances for survival. The use of criminal law to combat the AIDS epidemic has lingering and devastating consequences for the queer community, particularly for Black queer people who are already targeted by police.

“Moving forward,” Strangio said, “the ACLU’s work on behalf of people living with HIV will focus on the criminal legal system and the continued efforts to police and incarcerate people with HIV. In particular, we will work to challenge existing laws that make having HIV a crime, as well as the disparate enforcement of those laws against queer and trans people of color.” The ACLU was part of the coalition that recently helped to stop the practice of segregating HIV-positive prisoners (as late as 2014, Alabama was the last state to segregate its HIV-positive prisoners from the rest of the population). Coming from a prison abolitionist stance, Strangio said increasing access to medical care for people behind bars as well as “getting people out of our carceral systems altogether” are other goals the HIV decriminalization movement needs to get behind.

The Work Ahead

Rep. Barbara Lee (D-California) introduced the REPEAL Act intended to decriminalize HIV from a legislative perspective. The act would require states like Missouri’s to review their HIV criminalization laws, with the federal government providing guidance on how to best revise these laws. Hanley adds that expanding access to medication, especially in the southern United States, is essential.

In certain countries in Africa where HIV is widespread, laws criminalizing HIV/AIDS exposure and infection are being reconsidered. In Kenya, for example, infection comes with a penalty of years in prison, a penalty that is currently being reviewed. UN researchers published a study in 2014 pointing to the decriminalization of sex work as the single best way to combat the disease. But in many cases, the stigma, and laws, remain tough. As recently as September 16, a first-of-its-kind lawsuit was filed against the insurer Mutual of Omaha, for denying coverage to a man taking PrEP; the suit claims the denial was “based on bias against gay men, and myths, and stereotypes and false beliefs that gay male sexuality is inherently risky and unhealthy.”

Ralowe Ampu from the direct action group Gay Shame SF said the real injustice is “the thousands of dollars in resources and time cops spent entrapping Robert Smith,” adding, “It’s [the] criminalizing [of] Black queerness and disability that puts so many of our people in jail.” The money currently spent on prisons and the security state could be better spent helping people with HIV/AIDS, she added.

Ampu said mainstream LGBT organizations could do more to counter the stigmatization of Michael Johnson and other Black queers, arguing that Johnson is behind bars in part because the US mainstream “sees Black people as vectors for contagion.”

“For all the organizations that have all kinds of access to visibility, the very least they could do is try to transform the public image of Black queers,” and demand Johnson’s freedom, she said.

Ampu compared the activism around Johnson’s case to an earlier case around the New Jersey 4 – Black lesbians who were imprisoned for defending themselves against a homophobic attacker. “Michael Johnson only received four visitors last year,” she said. As a next step, as one of the few groups doing substantial work around the issue, “At some point we’re probably going to have to do what we did with the New Jersey 4 and attempt to meet with him face to face.”

In May, Strangio wrote on the ACLU’s blog, “Almost 30 years since the founding of ACT UP, the calls to ‘Stand up. Fight Back. Fight AIDS.’ must continue. And those calls mean fighting the criminalization of HIV.”

Kaneko added, “When folks don’t live in fear, and have better access to resources, they can invest more in their physical and emotional health. This improves overall community health. Fear’s a huge issue, on both sides. It’s what feeds the ignorance of what’s behind the laws and makes it more difficult for some folks to seek the care they need.”

Writing from prison, Johnson proudly mentions his blossoming wrestling career, even though it is now on hold indefinitely. In the BuzzFeed piece on his case, writer Steven Thrasher mentions how none of Johnson’s college wrestling buddies went to see him in jail, which wasn’t far from Lindenwood University where he had enrolled on a wrestling scholarship.

Despite his sentence, his goals include getting a degree in video broadcasting, “winning more wrestling trophies” and trying for an Olympic gold medal. “Then [I would] give back to my community as I thank God for all I was able to do,” he told Truthout. “Even now I thank God for all I have every day.”

“I’m a loving devoted father who wanted to better his life by going to college,” he added. “I never want anyone to have to go through this type of pain.”

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