a sociology essay

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part two

The Criminalization of Sickness

Hoppe, Trevor. Punishing Disease : HIV and the Criminalization of Sickness, University of California Press, 2017. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/miami/detail.action?docID=4820028. Created from miami on 2018-11-01 00:15:08.

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101

On October 15, 1982, a White House reporter asked President Ronald Reagan’s press secretary Larry Speakes about the AIDS epidemic for the fi rst time. More than a year had passed since the June 1981 report from the Centers for Disease Control (CDC) documenting a handful of pneu- monia cases involving young gay men in Los Angeles. The CDC had recently termed the disease “acquired immune defi ciency syndrome,” but the president had remained silent, even as the disease claimed the lives of hundreds of Americans. In an almost-casual act of callous indif- ference, Speakes feigned ignorance, asking, “What’s AIDS?” When the reporter replied, “It’s known as the gay plague,” the entire room erupted in laughter. “I don’t have it,” Speakes replied. “Do you?”

For several years, the Reagan administration’s offi cial response to AIDS would be no response at all. AIDS had become political fodder for religious conservatives who characterized the disease as the “cure for homosexuality.” Any legislation introduced to fund AIDS research, treat- ment, or prevention became mired in moralizing debates over whether these eff orts might have the eff ect of “promoting homosexuality”—a view summarized neatly in a 1983 Oklahoma newspaper editorial criti- cizing calls for increased federal AIDS funding:

Any human being is entitled to compassion. And any American citizen deserves the best medical care he can aff ord. But the public is under no moral obligation to provide a disproportionate share of its wealth to deal with a problem that, at least for 75 percent or more of the victims, results from their

chapter 4

Making HIV a Crime

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102 | The Criminalization of Sickness

own pursuit of a lifestyle that the vast majority considers to be perverted, abnormal and immoral.1

By 1985, over one hundred thousand Americans had contracted the disease. Many of them had died—including America’s one-time heart- throb, actor Rock Hudson. With so many Americans aff ected by the epidemic, it became increasingly indefensible for the government to remain indiff erent, even in the face of sharp criticism like the editorial above. Yet, even as legislators across the country fi nally began to mount a response to the disease, fear and stigma continued to guide their approach. When the U.S. House considered $189.7 million in funding for AIDS research and prevention in the fall of 1985, Republican legis- lators tacked on a provision allowing the surgeon general to close gay bathhouses. Representative William Dannemeyer (R-CA) justifi ed the eff ort to crack down on gay establishments, arguing that “God’s plan for man was Adam and Eve, not Adam and Steve.”2

Beyond just a question of funding, however, the legal and regulatory problems posed by AIDS were systemic. Basic bureaucratic concerns such as what agencies were responsible for managing which aspects of the government’s response to AIDS needed to be sorted. Monitoring the epidemic also required clarifying technical public health surveillance issues such as how newly diagnosed cases were to be reported to health authorities. And with so much misinformation and stigma circulating among Americans, there was an urgent need to clarify whether existing civil rights legislation protected HIV-positive children from being barred from enrolling in school and dying tenants from being evicted by their landlords.

While the federal government had a role to play in providing fund- ing, instituting regulations, and designing guidelines, much of the day- to-day work of prevention, treatment, and surveillance was not done at the federal level. As is the case in most areas of public health practice, the bulk of the responsibility for managing the response to HIV lay instead with state departments of public health and their county- and city-run counterparts.3 In most states, basic provisions for public health practice are housed in state public health codes enacted by the state legislature—meaning that adapting each state’s public health infrastruc- ture to HIV generally required action by lawmakers.4

In many states, this was a daunting task: most states had adapted their disease control laws piecemeal over time in response to the specifi c epi- demics of the day. As legal experts Lawrence Gostin, Scott Burris, and

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Making HIV a Crime | 103

Zita Lazzarini put it, these laws “tell the history of disease control in America much as geologic strata tell the history of the earth”:

In the eighteenth century, communicable disease statutes focused primarily on smallpox, though quarantine regulations were generally applied to any identifi ed disease or “fever” that might be perceived as a threat. . . . In the nineteenth century, states and municipalities enacted regulations in response to periodic epidemics of yellow fever and cholera. . . . Increasing attention was also paid to tuberculosis, which was one of the leading causes of death. . . . Continuing eff orts to control syphilis in the fi rst half of twentieth century led to statutes authorizing premarital screening, reporting, contact tracing, and involuntary treatment.5

Each new disease brought a new layer of legal regulation and control. However, rather than overhauling the entire public health code when new threats emerged, lawmakers tended to either draft new provisions specifi c to the new illness or simply tack it on to antiquated statutes.

Although AIDS bore similarities to diseases that came before it, three key diff erences set it apart from epidemics of the past. First, while HIV was transmitted sexually like syphilis and gonorrhea, it was also fre- quently transmitted through nonsexual blood-to-blood contact. Regu- lating injection drug use was not quite the same as regulating sexual behavior. This made HIV somewhat ill suited for the “venereal disease” statutes enacted during the syphilis panics of World War II.

Second, although AIDS could be deadly like tuberculosis (TB), it was untreatable and incurable—meaning that inserting AIDS into long- standing TB quarantine statutes would have entailed locking up people living with HIV for the rest of their lives; the human rights implications were perilous, not to mention the cost to the state of such a program. HIV is also diff erent from TB in that it is not highly contagious. For these reasons, quarantine has never been widely regarded by public health experts as a sensible approach to HIV prevention.6

Third, because the disease was sexually transmitted, deadly, and pri- marily associated with gay men and drug users, the stigma attached to HIV was considerable: HIV-positive children were kicked out of their schools;7 prominent conservatives promoted conspiracy theories that the government was lying about the contagiousness of AIDS;8 and some funeral homes even turned away people who died of AIDS-related ill- ness out of an unfounded fear of contracting the disease.9 Consequently, many in public health argued that lawmakers needed to codify excep- tionally stringent privacy safeguards to help promote HIV testing—an approach that came to be known as AIDS exceptionalism.10

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104 | The Criminalization of Sickness

These complexities made it all but impossible for legislators to sim- ply tack HIV onto existing public health law; they needed to draft entirely new, HIV-specifi c legislation. Over the next fi ve years, legisla- tors across the country introduced a fl urry of legislative proposals for testing, treating, and preventing HIV.

At the heart of many of these legislative eff orts was a debate over whether to restrict the civil liberties of people diagnosed with the disease—often positioned as necessary to protect the “general popula- tion” (a category that presumably excluded gay men and other minori- ties). Conservatives called for invasive and punitive measures to curtail the rights of people living with HIV, and polling data suggests that sup- port for such proposals grew over time. A 1987 Los Angeles Times poll found that 42 percent of Americans believed that “civil liberties must be suspended in the war on AIDS,” and 68 percent favored “criminal sanc- tions against people with acquired immune defi ciency syndrome who remain sexually active.”11 Perhaps even more troubling, the Times poll found that the number of people supporting conservative columnist William F. Buckley’s proposal to tattoo newly diagnosed patients had doubled from 15 percent in 1985 to 29 percent in just two years.

AIDS emerged in this punitive culture of fear, which directly shaped how legislators in the United States responded to the disease and sought to manage it. By harnessing AIDS stigma, lawmakers stoked Americans’ fears in order to justify new punitive policies that explicitly and implic- itly targeted gay men, sex workers, and injection drug users—a tactic lifted straight out of the war on drugs playbook.12

This chapter analyzes how HIV-specifi c criminal legislation spread throughout American state legislatures between 1985 and 2014. His- torically, scholars have suggested that federal policies were responsible for prompting states to enact HIV-specifi c criminal penalties. Specifi - cally, they point to Ronald Reagan’s presidential commission, described in more detail later in the chapter, which recommended enacting HIV- specifi c criminal laws in its 1988 report. They also point to the Ryan White CARE Act of 1990, which included a provision that required states to certify that their criminal laws were “adequate to prosecute any HIV infected individual” who knowingly exposes a person to HIV.13 However, as this chapter shows, by the time the commission issued its report in the spring of 1988, lawmakers in sixteen states had already introduced over two dozen bills that would impose some form of crim- inal sanction against HIV-positive people during the 1985, 1986, and 1987 legislative sessions. This chapter argues that rather than being the

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Making HIV a Crime | 105

spark that ignited a wave of criminalization, these federal policies played a diminished, institutionalizing role, legitimizing the moves toward criminalization that were already well under way.

This chapter explains four factors that actually did motivate states to enact HIV-specifi c criminal laws. First, prosecutors attempted and failed to use general criminal laws such as assault and attempted murder to punish HIV-positive defendants, but a series of high-profi le acquittals and dismissals drove many prosecutors and members of law enforce- ment to conclude that HIV-specifi c criminal laws were necessary.

Second, numerous news reports from the mid-1980s reveal an organ- ized aggravation among police and prosecutors confronted with sex workers who had tested positive for HIV; police, prosecutors, and media organizations cried out for HIV-specifi c felony prostitution penalties.

Third, some states began to consider criminalizing HIV as a neces- sary measure in response to the decriminalization of sodomy—a move that some believed would lead to an explosion of new HIV cases.

Fourth, a Republican state representative from Illinois and member of Reagan’s presidential commission—wryly referred to in this book as “Lawmaker Zero”—worked with an infl uential lobbying organization to leverage her institutional networks, helping to disseminate a model statute to dozens of states around the country.

Rather than a singular top-down story of federal infl uence, these four factors reveal a far more complex origin story of the movement to crim- inalize HIV.

prosecution, interrupted: why law enforcement demanded hiv-specific criminal laws

In October 1985, the San Antonio Health Department took an unprec- edented step in its eff ort to control HIV: department staff hand-deliv- ered letters to the homes of fourteen of the seventeen city residents known to have contracted HIV. These letters were not intended to con- sole or provide counsel for the terminally ill patients, but rather to warn them: if they engaged in any sexual activity whatsoever with an HIV- negative person, they would face felony criminal charges.14

The letters were reportedly sparked by warnings from an area physi- cian that “at least three” people living with the disease “had not limited their sexual activities.”15 San Antonio’s health director, Dr. Courand Rothe, reassured the public at a news conference organized to respond

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106 | The Criminalization of Sickness

to criticism over the letters. “I’m not interested in putting people in jail. I just want to control this disease,” he said. Nonetheless, the hand- delivered letters threatened the recipients with third-degree felony charges carrying a maximum penalty of ten years in prison and a $5,000 fi ne under the Texas Communicable Disease and Control Act. The letter specifi cally instructed:

You must not engage in sexual intercourse with anyone not having a con- fi rmed diagnosis of AIDS. You must not share the use of needles with another. You must not donate blood, blood products, semen, body organs or other tissues. You must make the fact that you are a diagnosed AIDS patient known to physicians, dentists, and others whom you consult as a patient on a professional basis.16

The National Gay Task Force (one of the nation’s leading gay rights organizations) called the response “hysterical” and criticized health authorities for making “people think gays with AIDS are being irre- sponsible.”17 The organization argued that the best way to control the disease was not punishment but education and the use of condoms.

The health department director’s threat of criminal charges repre- sents one of the fi rst systematic attempts in the United States to crimi- nalize the behavior of people living with HIV. At the time, it was not specifi cally a crime for HIV-positive people to engage in sexual activity under Texas law—or anywhere else in the country, for that matter. Rather, the director was creatively deploying a provision in a 1983 Texas statute providing for felony charges against any person who “knowingly refuses to perform or to allow the performance of certain control measures ordered by a health authority or the department.”18 The health director did not wait for a particular person to demonstrate behavior that might put others at a risk of transmission. Instead, he simply delivered his orders to almost every single person diagnosed as living with HIV in the city of San Antonio, eff ectively writing a city- level, HIV-specifi c felony into law.19 This provision gave local health departments in Texas the unilateral power to classify as felonious any actions they deemed a threat to public health.20

San Antonio turned out to be an aberrant case; few health depart- ments took such strident actions. Much more typical were eff orts by prosecutors to devise creative strategies for using other statutes not specifi cally designed to punish people living with HIV. For example, on October 6, 1985, police arrested Blaine Prairie Chicken “during a disturbance at a laundromat” in El Cajon, California.21

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Making HIV a Crime | 107

“Chicken is accused of biting one of the offi cers through his uniform, drawing blood, and then telling the offi cer that he was a homosexual who had AIDS and that he hoped the offi cer contracted the disease,” reported the San Diego Union-Tribune.22 Prosecutors charged Chicken initially with resisting arrest and battery on a peace offi cer but fought to keep him behind bars while they could determine what charges to seek in the case. After eff ectively denying Chicken bail, municipal court judge Victor Bianchini told the media: “This is such a novel case. . . . We could have a homicide or an attempted homicide case.”23

Despite the fact that HIV was not known to be transmitted through biting, Chicken’s case dragged on for nearly a year as prosecutors waited to determine if Chicken did, in fact, have the disease. His defense attor- ney and the prosecutor came to a plea agreement that was contingent on the outcome of those tests: “Prairie Chicken will be sentenced for misdemeanor assault if the offi cer is determined not to have been exposed to AIDS. If the offi cer has been exposed, however, Prairie Chicken will receive a felony sentence.”24 Ultimately, testing showed Chicken to be HIV negative; he pled guilty to misdemeanor off enses and was sentenced to ninety days in jail.

Several miles away in San Diego County, authorities were simultane- ously trying to determine the HIV status of a man who was arrested during the city’s twelfth annual gay pride festivities after he reportedly “squirted water” at antigay demonstrators.25 As he was being arrested, Brian Barlow allegedly bit two offi cers on the hand and shoulder. After taking Barlow to the hospital to be treated for injuries sustained during the arrest, police offi cers asked him if he was gay and HIV positive.26 He said that he was gay, but denied being HIV positive twice before fi nally stating that “for the offi cers’ sake, you better take it that I do.” After refusing to voluntarily submit to a blood test for HIV, police forcibly drew his blood and booked him on charges of battery on a police offi cer. The offi cers planned to test the sample for HIV, and, if the tests came back positive, prosecutors intended to increase the charges against Bar- low to felony assault with a deadly weapon. State law, however, prohib- ited the results of an HIV test from being shared, barring authorities from accessing vital records. Offi cers appealed a lower court’s ruling that prohibited them from accessing the results, but the California Supreme Court ultimately ruled against them. A jury ultimately acquit- ted Barlow of the lesser criminal charges.27

Across the country, police and prosecutors were often thwarted in their attempts to apply general criminal statutes against people

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108 | The Criminalization of Sickness

living with HIV. In cases like Chicken’s and Barlow’s, medical privacy laws prevented accessing defendants’ HIV-test results. In other cases, however, prosecutors struggled to fi t HIV-related prosecutions into legal structures that were not designed for punishing disease. Like the judge assigned to Chicken’s case, authorities often boasted of their goals to charge defendants with attempted murder. However, their eff orts to do so were almost never successful, as homicide statutes require that pros- ecutors prove that the defendant specifi cally intended to kill.

In 1987, for example, Fresno, California, prosecutors dropped attempted murder charges against a woman sex worker and a man described as her “pimp.” The prosecutor told the media that murder charges were deemed inappropriate “because California law requires proof of a specifi c intent to kill in order for the charges to be made.”28 Later that year, a Los Angeles judge dismissed attempted murder charges against a gay man accused of selling his blood to a plasma bank because “the prosecution failed to show the defendant intended to kill any- one.”29 These widely reported cases came on the heels of similar cases in which homicide-related charges were dismissed or failed to stick in Florida and Michigan in 1986.30

In the face of these failed prosecutions, media outlets demanded that legislators introduce HIV-specifi c criminal laws. An Orlando Sentinel editorial specifi cally argued that stiff penalties were necessary to dis- courage “case-by-case experimenting” in which authorities “dream up novel ways to prosecute today’s version of Typhoid Mary.”31 But nowhere in the country was the discussion as heated as in California, where conservative extremist Lyndon LaRouche had stoked the fears of Americans through repeated ballot initiatives aimed at restricting the civil rights of people living with HIV.32 In a 1987 editorial titled “There Ought to Be a Law,” Daily News of Los Angeles staff wrote that “it is time for Sacramento to exercise the political will needed to prevent unstable AIDS victims from passing on a death sentence to others.”33

Although some were skeptical, public health experts had diff erent opinions as to whether criminalization was a good idea. Some did expressly oppose criminalization, such as public health law expert Law- rence Gostin, who frequently argued against imposing criminal sanc- tions on the grounds that they “would make it more diffi cult to combat the disease.”34 In a 1987 address to a joint session of the California legislature, Nobel laureate and AIDS researcher Dr. David Baltimore implored lawmakers to “hold in check the instinct to punish the infected.”35 Other experts were more ambivalent, such as Surgeon Gen-

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Making HIV a Crime | 109

eral C. Everett Koop, who questioned whether such laws were enforce- able: “There are people who say you should make it [a] felony for [peo- ple living with HIV] . . . to ‘exchange bodily fl uids.’ How are you going to do that? Are you going to monitor every bedroom?”36

Other public health experts, however, were explicitly in favor of criminalization. In an American Journal of Public Health article pub- lished in 1989, Dr. Victor E. Archer proposed a six-point HIV control plan that included implementing a quarantine system he termed “HIV parole” as well as a call for public health offi cials to sponsor “uniform laws throughout the United States making it a felony . . . to infect some- one else with HIV.”37 Findings from a 1994 survey of state health departments refl ect this diversity of opinion: one-third supported the use of criminal laws to punish people living with HIV; one-third were opposed; and one-third were uncertain or did not respond.38 In short, there was no consensus on the matter among public health practition- ers, leaving the professionals with the most expertise largely relegated to the sidelines as these debates unfolded.

Although initially dismissive, President Ronald Reagan’s administra- tion did eventually put together a commission tasked with making pol- icy recommendations for addressing the HIV epidemic in the United States. When Reagan’s Presidential Commission on the HIV Epidemic issued its fi nal report in 1988, the authors did not equivocate on the subject of the criminal law. They argued that “HIV-infected individuals who knowingly conduct themselves in ways that pose a signifi cant risk of transmission to others must be held accountable.”39 However, they recognized the problems facing authorities hoping to do so:

Use of traditional crimes such as murder or attempted murder to prosecute an individual for HIV transmission presents such diffi culties as proving that the intent of the HIV-infected individual . . . and proving that the act of transmission was the actual cause of death. Although the assault model pro- vides a more useful tool for criminal prosecution of HIV transmission, the penalties for assault would prove too lenient in those cases where the trans- mission was intentional.40

In this passage, the presidential commission’s report zeroes in on a key problem facing prosecutors hoping to press charges against HIV-posi- tive defendants. Under criminal statutes such as assault with a deadly weapon and attempted murder, the prosecutor must show that the defendant acted with criminal intent, or mens rea. A string of high- profi le acquittals and dismissals for failure to prove intent and/or to legally secure the defendant’s medical records fueled a belief among

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110 | The Criminalization of Sickness

some in law enforcement that general statutes were insuffi cient. While it did not explicitly say that general statutes were insuffi cient, the presi- dential commission nonetheless spoke to this concern by encouraging states to review their statutes and determine whether HIV-specifi c laws were necessary.41

“selling death”: organized aggravation and the fight for felony prostitution penalties

During the early 1980s, there was considerable anxiety among public health professionals and the public that prostitution might provide a “bridge” for HIV to jump from urban centers to American suburbs. These fears were infl amed by a series of small studies that found high levels of HIV prevalence among female sex workers in several African countries.42 In 1985, a team of researchers examining the heterosexual transmission of HIV warned that “prostitutes could serve as a reservoir for [HIV] infection for heterosexually active individuals.”43 Based on these fi ndings, health authorities worried that HIV in the United States could become what epidemiologists call a “generalized epidemic”—dif- fuse throughout the American population instead of concentrated in specifi c subpopulations.

But as a 1989 article in the San Francisco Chronicle describes, the impending heterosexual epidemic driven by prostitution never came:

In 1985, public health offi cials—particularly in New York City, where as many as half of all prostitutes are estimated to be HIV-infected—predicted that it was only a matter of time before the businessman from Cleveland was spreading around viral souvenirs to his wife or girlfriend. At the CDC, the epidemiologists waited for evidence that this would happen. And they waited. Several years into their watch, however, it hasn’t.44

A CDC researcher told the Chronicle, “There isn’t any evidence that I’m aware of that clearly indicates prostitutes as a transmitter of HIV infec- tion.”45 As most sex workers are women, this was likely due to the fact that it is much more diffi cult for HIV to be transmitted from women to men than the reverse. This was not uncommon knowledge. For exam- ple, a legal expert reported in a 1988–1989 law review article: “Current statistics reveal that prostitutes are an unremarkable source of AIDS infection. . . . Nor is the virus spread eff ectively from the female prosti- tute to the customer.”46

Numerous news reports from the mid-1980s had described a sense of aggravation among law enforcement authorities confronted with sex

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Making HIV a Crime | 111

workers who had tested positive for HIV. Prostitution was generally a misdemeanor off ense in most states, which meant that anyone arrested for prostitution would likely be free from jail in a matter of months or even days. Police were upset that there was little they could do to keep these individuals behind bars. In a criminal justice context, aggravation typically refers to factors that make an individual crime more egregious and, thus, deserving of a more severe punishment. As the next chapter reveals, HIV is frequently viewed by judges and prosecutors as an aggravating factor in a court of law. But as this section reveals, a similar phenomenon can be observed on a broader scale when members of law enforcement organize to label a set of practices as especially egregious and deserving of increased punishment—what this book terms organized aggravation.

In Georgia, the Fulton County prosecutor declared his intent to charge HIV-positive sex workers with felony assault.47 He relied on a newly implemented regulation issued by the Georgia Department of Human Services that allowed that agency to report the HIV-test results of convicted sex workers to local judges.48 In Rhode Island, Chief Judge Albert E. DeRobbie invoked a new state law that allowed the health department to involuntarily test a person deemed to be a threat to pub- lic health, demanding that district court judges relay the names of indi- viduals convicted of prostitution to local health departments for testing; Judge DeRobbie justifi ed these eff orts by labeling AIDS as deadly and anyone who infects someone else as an executioner. “If you give some- one AIDS, you sentence them to death.”49 In Minnesota, prosecutors sought to revoke the probation of a woman suspected of being HIV positive after she was entrapped by an undercover police offi cer for soliciting. The prosecutor did not mince words in defending his eff orts: “It is akin to someone walking down the streets carrying a bomb.”50

In the face of these legal challenges, lawmakers in several states sought to enact legislation that would aid the eff orts of prosecutors and the police to put sex workers living with HIV behind bars for far longer. They did not rely on scientifi c studies to justify their eff orts; instead, they sensationalized individual arrests of HIV-positive sex workers. These widely publicized cases represent one type of what crime policy scholars call “triggering events,” which include sensationally reported crimes, court decisions, interest-group lobbying, and other factors that trigger lawmakers to devise new criminal sanctions.51 Police lobbied for new laws on the basis that these individual sex workers were just the tip of the iceberg, representing a much larger problem that they believed needed to be addressed through legislative action.

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In fact, the practice of pointing to specifi c HIV-positive sex workers dates back to the fi rst known attempt to pass HIV-specifi c criminal leg- islation. On May 6, 1985, New Jersey legislators introduced the fi rst HIV-specifi c crime bill in the United States. Assembly Bill 3577 was broadly construed so as to impose penalties on any person living with HIV who, “knowing that he is infected by acquired immune defi ciency syndrome, transmits the disease to another person through sexual con- tact.”52 Nonetheless, the bill’s sponsor, New Jersey state senator Gerald Stockman, told media outlets that he drafted the bill “at the request of Trenton police,” who were reportedly concerned that “a 25-year-old AIDS victim who has two young children with the disease had been working as a prostitute on city streets.”53 (The bill did not pass.)

Notably, it was police who brought the issue to the attention of New Jersey lawmakers. Throughout the 1980s, law enforcement frequently lobbied for legislation that would impose criminal sanctions against people living with HIV—far more than any other interest organization. Although police representatives occasionally made their case in public to the media, they also lobbied lawmakers behind closed doors— evidence of their infl uence remains only in lawmakers’ public state- ments such as Stockman’s. Although New Jersey’s bill failed, police con- tinued to press lawmakers in several states to enact specifi c legislation that would enable prosecutors to charge HIV-positive sex workers with what is sometimes termed aggravated prostitution—a felony off ense targeting HIV-positive sex workers.

In Nevada, the only state in the country that allows local jurisdic- tions to permit prostitution, lawmakers led the way in enacting such legislation when they passed a landmark bill in 1986 requiring anyone convicted of prostitution to be tested for HIV; those who tested HIV positive would face felony charges if they were ever again caught selling sex. According to Nevada state legislator John DuBois, the bill was sup- ported by law enforcement. He told the media that “law enforcement was particularly for this because it fi lls a void. . . . They have no law on the books to really do anything about these people except something that makes spreading an infectious disease a misdemeanor.”54

In other states, aggravated-prostitution legislation was infl uenced by partisan politics as legislators jockeyed to position themselves as tough on crime to their constituents. In 1988, for example, California repre- sentative Bruce Bronzan introduced a felony bill targeting sex workers living with HIV. Bronzan, a Democrat, had voted against punitive AIDS bills in the past, but in 1988, he was up for reelection in conservative

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Making HIV a Crime | 113

Fresno. His Republican opponent promptly criticized his sponsoring the bill as an attempt to play party politics during an election year.55 Bronzan, on the other hand, said he was motivated to introduce the bill in the wake of the 1987 Fresno case discussed earlier in this chapter in which prosecutors failed to secure a felony attempted murder convic- tion against an HIV-positive sex worker.56 Although the Bronzan bill was approved by the legislature, the governor ultimately vetoed it in favor of a broader proposal (enacting stiff er penalties for a range of sex crimes, not just prostitution) sponsored by one of the most conservative members of the state senate, John Doolittle.57

In Florida, law enforcement, legislators, and even the media spoke out as a chorus of “moral entrepreneurs,” or individuals or organiza- tions who advocate for a particular behavior or phenomenon to be labeled as crime.58 Collectively, they rallied to label sex work for people living with HIV as homicidal and to demand new laws to combat the phenomenon. Orange County prosecutors charged an HIV-positive sex worker with felony attempted manslaughter in the winter of 1987. Despite the fact that the woman used condoms, State Representative Rich Crotty declared that the woman’s actions were “tantamount to murder.”59 Days later, another HIV-positive female sex worker was arrested in Fort Lauderdale; instead of being charged with manslaugh- ter, she was convicted of misdemeanor prostitution and sentenced to ninety days in jail. Both the city police chief and the prosecutor labeled the sentence as inadequate and spoke out publicly to demand the legis- lature enact stiff er criminal penalties for sex workers living with HIV. Despite the fact that no one was known to have been infected by the woman, Fort Lauderdale prosecutor Scott Walker complained that “it should be a felony. It’s like a slow murder.”60

In the wake of these cases, the editorial board of Fort Lauderdale’s largest newspaper, the Sun Sentinel, took on the role of bully pulpit to argue in an op-ed for legislators to take action. According to the editorial board, the women arrested were “living proof that . . . ‘prostitution is a victimless crime’ is a vicious lie.”61 Citing a police-reported fi gure that over two hundred sex workers in Fort Lauderdale were living with HIV (as well as Walker’s “slow murder” comment), the paper’s editorial board declared: “New state laws are needed, to provide longer felony sentences for prostitutes infected with AIDS and even for possible quarantines.”62

The Florida House of Representatives had voted down felony charges targeting sex workers living with HIV in 1987, but the pressure had mounted considerably in the wake of the two highly publicized cases.63

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Two Republican representatives, Rich Crotty and Javier Souto, intro- duced a felony prostitution bill a mere nine days after the Sun Sentinel editorial went to print. The American Civil Liberties Union lobbied against the bill, arguing that the issue should be labeled as a problem for doctors instead of the criminal justice system: “These people are a medi- cal problem, not a criminal problem.”64 Souto defended the stiff er penal- ties by again invoking the homicide label, arguing that “60 days is a very short period of time when we’re dealing with a killer.”65 Ultimately, the felony prostitution penalty was folded into a much larger bill relating to public health and HIV—House Bill 1519—and was voted into law.66

Over the next several years, familiar stories played out in more states—such as Colorado two years later. News broke in early January that a woman living with HIV named Avis had been arrested for prosti- tution for the twenty-sixth time in Denver.67 But while medical privacy laws prevented health authorities from publicly discussing Avis’s case, city prosecutors and the police publicly expressed their frustration with her case to the media. City attorney Steve Kaplan complained, “Yea, we’re frustrated. . . . We’re real frustrated. We’re the ones who have to deal with her.”68 The police did more than just complain, how- ever; reports reveal that they reacted to Avis’s case by actively organiz- ing to label sex work for people living with HIV as a felony, launching a media campaign and sending lobbyists to the Denver capitol building to advocate for an HIV-specifi c felony prostitution bill. On January 31, 1990, a Rocky Mountain News article opened with the following lede: “Denver police say AIDS is spreading among the city’s prostitutes, many of whom continue to work the streets despite knowing they are dying of the disease and passing it on to their clients.”69 Mostly informed by police sources, the story does not cite a specifi c case of transmission from a sex worker to a client; instead, it relies on police representatives’ claims that a group of women sex workers were exposing countless Denver residents to the disease.

Less than a week later, the Denver Post ran a story picking up where the Rocky Mountain News story left off , dedicating much of the story to Avis’s case.70 In this story, however, police explicitly label the wom- an’s actions as homicidal—not just to her clients, but to her family. Sergeant David Watts told the Post that “Avis and others like her are selling death. . . . People say that the john (solicitor of prostitutes) gets what he deserves. Well, it goes further than that. AIDS is transmitted to his wife and to their baby.” In Watts’s view, prostitutes were not just killing their clients, they were endangering the lives of innocent women

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and children. However, no incidents in which HIV was transmitted along such a route were identifi ed.

In previous cases, police had frequently pointed to isolated cases rather than scientifi c data to justify their calls for criminalization. This is likely due to the fact that scientifi c studies conducted in the United States largely contradicted their claims that sex workers posed a signifi - cant health threat. While sex workers often had elevated HIV preva- lence rates, studies concluded that prostitution was not likely to drive a heterosexual epidemic in the United States.71 Rather than relying on published fi gures, however, Denver police made up their own statistics, telling the Post that 75 percent of male sex workers and 50 percent of female sex workers were HIV positive. These fi gures were outrageously high and stood in stark contrast to scientifi c fi ndings published at the time that less than 7 percent of women sex workers in American urban areas were living with HIV.72 Police representatives told the Post that they had “no way of verifying our statistics.” However, the Post story suggests that this was not true: Apparently police could have obtained more reliable fi gures had they picked up the phone and called the state health department: The director of Colorado’s HIV control problem informed the Post that only 1 percent of sex workers tested by order of the police had tested HIV positive. “It’s not like it’s a widespread prob- lem. I don’t know where they are getting their fi gures,” he added.73

In an editorial published days later, the Rocky Mountain News relied on those health department fi gures to argue for a more well-informed debate on the issue.74 Police and prosecutors, it argued, were identifying the wrong cause driving the epidemic: injection drug use, not prostitu- tion, was the deserving culprit. “While we don’t necessarily object to such a law,” said the editorial,

we do dissent from pointless fear-mongering. The fact is that female prosti- tutes are not spreading AIDS willy-nilly. . . . Between 1986 and ’88, Denver General Hospital tested 372 prostitutes picked up by Denver police. Only four tested positive. . . . True, of 538 other people tested last year who admitted several “high risk factors” at some time in their lives, including IV drug use and prostitution, 51 tested positive. But this says little or nothing about the risk of getting AIDS for either non-drug-using prostitutes or their customers, since needle-sharing is a great way to transmit the virus.75

However, the engines of criminalization already in motion were not fueled by statistics or science; the organized aggravation of police was instead based on emotions and stigmatizing views of HIV and its trans- mission. Denver police assigned Detective John Schnittgrund to lobby

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lawmakers for an HIV-specifi c felony bill targeting sex work, even going as far as drafting statutory language for lawmakers, specifi cally mod- eled on Nevada’s felony law.76 Although police initially struggled to fi nd a sponsor for their proposed bill, the repeated high-profi le media stories may have helped to pressure lawmakers to take up the police bill. Two weeks after the Rocky Mountain News urged caution, House Bill 1255 was introduced and ultimately approved by the legislature.

By 1995, ten states had enacted felony HIV-specifi c penalties target- ing sex workers. In many cases, those laws paved the way for broader statutes that criminalized any form of “exposure,” or any sexual activ- ity by an HIV-positive person who did not disclose his or her HIV sta- tus—HIV exposure and nondisclosure laws, for short. Among the seven states that enacted both laws targeting HIV-positive prostitutes and more general HIV disclosure or exposure statutes, four enacted prosti- tution penalties in advance of broader statutes. Many more states would go on to pass much broader HIV-specifi c criminal laws, which are dis- cussed in the following section; however, the prostitution panic of the mid-1980s provided the kindling for the wave of criminalization to come.

“a cesspool for disease”: public health as pretense for punishing gay sex

In May 1985, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit struck down Georgia’s sodomy law, ruling that it had violated Michael Hardwick’s right to privacy when he was arrested for engaging in oral sex with another man in 1982. The court ruled that Georgia could not justify such an invasion into the private lives of American citizens without demonstrating a compelling state interest. “The Constitution prevents the states from unduly interfering in certain individual decisions critical to personal autonomy because those decisions are essentially private and beyond the reach of a civi- lized society,” the justices ruled.77

By the time the appeals court ruled in 1985, much had changed since Michael Hardwick’s arrest. Some observers wondered whether states might pivot to argue that the need to control AIDS—rather than simply a bigoted view of homosexuality—provided a renewed justifi cation for sodomy laws. Frederick Allen, a columnist for the Atlanta Journal and Constitution, proposed such a strategy for Georgia’s legal team:

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The court’s challenge to Georgia offi cials to fi nd a rationale for regulating sexual behavior has a distinctly defi ant tone, as if no rationale could possibly exist—but the 11th Circuit panel has opened precisely that door. The state of Georgia is free to argue, for instance, that promiscuous homosexual contact encourages the spread of AIDS, and that the public at large thus has a com- pelling interest in closing down gay bathhouses or policing the interstate rest stops that have become gay gathering places.78

The problem with that approach, Allen continued, was that “the state would be defending a severe, sweeping, unenforceable law that was written with morality, not AIDS, in mind.” A more sensible solution would be “for the General Assembly to rewrite Georgia’s statute so that it adopts the limited goal of outlawing the public practice of acts that are known to spread a fatal disease.”79

Georgia ultimately appealed the decision to the Supreme Court of the United States, which heard oral arguments in Bowers v. Hardwick in late March 1986. Most of the arguments centered on whether American citizens have a right to engage in whatever forms of consensual sexual behaviors in private that they choose. But at the very end of the hour- long hearing, Justice Sandra Day O’Connor asked the lawyer for the Georgia man arrested under the state’s sodomy ban, Laurence Tribe, a curious question: “You suggested that if the state were to assert its desire to promote traditional families instead of homosexual relation- ships would not suffi ce in your view. . . . Perhaps the state can say its desire [sic] to deter the spread of a communicable disease or something of that sort?”80 In other words, if promoting the heterosexual family was not a suffi cient justifi cation for enforcing anti-sodomy laws, then perhaps the state might instead argue that these laws serve a public health interest. In his response to Justice O’Connor, Tribe cites an ami- cus brief submitted by the American Public Health Association in which it argued that sodomy laws are more harmful than helpful when it comes to public health.81 However, he suggested that a more specifi c law might pass muster: “Surely, if a narrowly tailored law could be shown necessary to protect the public health, that would be a compelling justi- fi cation, but Georgia off ers no such justifi cation here.”82

As the court deliberated for the next several months, lawmakers across the country braced for its decision. Dozens of state legislatures by then had repealed their anti-sodomy laws. However, so-called bug- gery laws—which had the eff ect of criminalizing homosexuality—were still on the books in nearly half of U.S. states when the court decided

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Bowers in 1986.83 In the end, the court reversed the Eleventh Circuit’s decision, ruling that homosexuals did not have a fundamental right to privacy; it made no mention of AIDS or public health in its ruling. Nonetheless, the notion that a “narrowly tailored law” might replace or buttress the state’s eff ort to criminalize homosexuality persisted.

In the summer of 1993, for example, Nevada lawmakers took up Senate Bill 466. The bill would repeal sections of the state’s sodomy law that criminalized private, consensual sex between members of the same sex, while adding more severe penalties for anyone who engaged in the “infamous crime against nature” with a minor.84 The bill also imple- mented mandatory HIV screening for prisoners admitted to the Depart- ment of Corrections, a provision that one lawyer argued was necessary to protect prisoners in the wake of the anti-sodomy law’s repeal (pre- sumably because prisoners were now vulnerable to being legally sodo- mized by HIV-positive inmates).85

At the May 24, 1993, Senate Judiciary Committee hearing on the bill, AIDS loomed large in the debates over whether to repeal the state sod- omy law. Of the eighteen individuals who testifi ed in support of the bill, three specifi cally argued that repealing the anti-sodomy law would help to promote HIV prevention by easing relationships between medical pro- viders and gay patients, who sometimes feared reporting illegal sexual practices. Of the thirteen critics who testifi ed in opposition to the bill, however, eight specifi cally argued that repealing the anti-sodomy law would encourage the spread of AIDS. Echoing pamphlets distributed to legislators by antigay crusader Paul Cameron, one local woman, Carolyn Nelson, argued that “garden variety sexual practices of homosexuals are a medical horror story. . . . This population of gays and lesbians is a cess- pool for disease.”86 Another woman, Lynn Chapman, argued that “she has had acquaintances who have died of AIDS, is acquainted with homo- sexuals, and . . . did not understand how the behavior which spreads the disease could be condoned.” Lobbyist Andy Anderson later held up a book about AIDS to the committee members and argued that “the book shows the result of the private lovemaking referred to in the law at issue. . . . Therefore, there is no such thing as a private aff air, and what is done by homosexuals does aff ect the rest of the public.” Finally, a lobby- ist for the Nevada Coalition for Concerned Citizens, Lucille Lusk, asked Senator Mark James whether “a law could be written which would assure the protection from the various possible eff ects spoken of by her and other opponents of S.B. 466.” Senator James asked Ms. Lusk what law she might have in mind, but she declined to elaborate.87

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Four days later, the Senate convened and read the bill for the third time.88 Two Republican senators—Ann O’Connell and Ray Rawson— spoke in favor of the adoption of Amendment No. 679, which would have added felony penalties to the sodomy decriminalization bill for any person who tested HIV positive to “willfully, wantonly or negligently [engage] in conduct in a manner that is intended or likely to transmit the disease.”89 At least on paper, the amendment was defended purely as a strategy for promoting public health. To make this noble goal explicit, the amendment authors penned a lengthy—if convoluted—preamble justifying the need for the anti-sodomy law (which would remain on the books to punish public sex, prostitution, and statutory rape) entirely on public health grounds:

Whereas, It is in the interest of the residents of this state to encourage the control, prevention and treatment of communicable diseases; and

Whereas, The state has a vital interest in protecting the welfare of the public by restricting behavior that increases the risk of transmitting such diseases; and . . .

Whereas, It is recognized that certain private behavior is beyond the scope of the state’s interest in protecting the health and welfare of its resi- dents; and

Whereas, It is the public policy of the State of Nevada and the purpose of this act to balance the interest of the state in protecting the health, welfare and safety of its residents with each resident’s legitimate right to privacy; now, therefore . . .

However, while the language of the amendment may have been pains- takingly neutral, the authors’ remarks on the senate fl oor reveal the anti- gay bias that at least in part inspired them. Asking his fellow senators to vote yes on the amendment, coauthor Senator Ray Rawson declared: “The fact is, and this is fact, that much of the activity associated with homosexual sex is dangerous. We can forget all of the moral arguments. We can forget all of the religious arguments. But there is a danger that is associated with the practice of this sexual activity.” One senator expressed sympathy with the author’s intentions but vowed to reject the amend- ment on the grounds that it would “muddy the waters” on an otherwise narrowly drafted piece of legislation.90 Chairman of the Senate Commit- tee on Judiciary Mark James warned his fellow lawmakers that, “if this amendment is defeated, the Senate Judiciary Committee will introduce a bill which handles Section 2 of the amendment on Tuesday morning.91

The amendment was voted down by a vote of 4–16. Senator Rawson lamented, “This is the most disappointing day that I have ever had in

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the Senate.” He went on to cite pseudoscientifi c materials produced by Paul Cameron’s Family Research Institute, an antigay organization the Southern Poverty Law Center classifi es today as a hate group: “Eighty percent of the heterosexual men, in this country, will die of old age. Two percent of the homosexual men will die of old age.” Despite these highly stigmatizing and wildly inaccurate claims, Senator Rawson insisted “I am not talking about morality.”92

The amendment’s failure did not stop legislators who intended to enact the HIV-specifi c criminal language in a separate bill. Senator Ernest Adler declared that he intended to have the chairman of the Sen- ate Judiciary Committee “amend one of my bill drafts to place language in it [that would criminalize willful HIV transmission]. . . . I would like to say that I, for one, do take the whole idea of transmittable diseases very seriously.”93 Even local newspapers urged the legislature to act. In an editorial published just days after the amendment’s failure, the Reno Gazette-Journal notes, “There is one amendment, though, that merits approval as a separate measure. This is the proposal . . . that would make the willful transmission of AIDS a felony.”94

Senate Judiciary Committee chairman Mark James made good on his promise to act, introducing a bill containing identical language to Amendment 679, Senate Bill 514, on June 1, 1993—just two business days after the senate rejected the amendment. Although it received far less debate than the sodomy repeal bill, many of the same organizations and interest groups turned up to argue the issue. Although one promi- nent AIDS services provider argued against singling out HIV among other diseases, no one staunchly opposed the legislation; rather, they debated the specifi c wording of the statute, prompting lawmakers to amend the law to provide for a defense if the person disclosed his or her status.95 It passed unanimously in the senate and the house and was signed by the governor on July 9, 1993.

The notion that enacting HIV-specifi c criminal legislation was tied to state sodomy laws persisted right up until the Supreme Court again revisited the issue in 2003, when it decided Lawrence v. Texas. In 2000, for example, Virginia lawmakers had introduced House Bill 141, the latest in a string of bills introduced since 1989 that would have made it a misdemeanor for someone living with HIV to expose someone else to the disease. While bills had failed to move out of committee in previous legislative sessions, the 2000 eff ort fi nally made it to the fl oor of the senate after the language was modifi ed to require proof of intent for prosecution, a provision not included in previous legislation.

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Whereas Nevada lawmakers argued that decriminalizing sodomy would have the unintended eff ect of legalizing HIV exposure, Virginia lawmakers worried instead that criminalizing HIV might have the unin- tended eff ect of legalizing sodomy. The reason, they argued, was that the laws eff ectively criminalized the same practices—but under the HIV law the practices would be misdemeanors, whereas under the sodomy statute, they were felonies. When the bill came up for debate in the General Assembly, Virginia delegate Brian Moran explained this argument:

Another objectionable provision of this bill is that these behaviors that you have to engage in to be guilty of this are in fact felonies in the Code of Vir- ginia 18.23621, “Crimes against Nature.” There is already felony punish- ment to engage in such behaviors. When I asked the Patron in the Courts and Justice Committee how a victim of this law could possibly incriminate them- selves in testifying as to this behavior. He said that some sort of deal would be made with the prosecutor. It’s objectionable to me and I hope it would be objectionable to you that we would be asking the prosecutor to absolve fel- ony behavior so that he or she may prosecute misdemeanor behavior.96

Virginia delegate and Democrat minority leader C. Richard Cranwell took the fl oor later in the day to again highlight this concern: “I suggest to you that what you’re fi xing to do is to legalize sodomy and a lot of other crimes between consenting adults where one may have HIV.”97

Although the bill passed the house 71–26, a senate committee subse- quently amended the bill to classify HIV exposure as a felony rather than a misdemeanor. It is not known precisely what motivated the Vir- ginia senate to modify the penalty provisions of the bill. However, it may have been motivated by the concerns expressed by delegates Moran and Cranwell that the HIV bill would exonerate felony sodomy crimes in favor of punishing misdemeanor HIV exposure. By raising the HIV- related penalties to the same felony level as sodomy statutes, the senate may have sought to neutralize this criticism. This suggests that, at least in part, the heightened felony penalty for HIV exposure in Virginia may be a vestige of the state’s commitment to punishing sodomy.

In the United States, the interplay between sodomy laws and HIV- specifi c criminal laws largely ended in 2003 when the Supreme Court ruled that American adults had a right to engage in whatever kinds of consensual sex they wished—at least in private and not for money—in its Lawrence v. Texas ruling. However, evidence that eff orts to criminal- ize HIV are interwoven with a desire to punish sodomy and gay sex continue to be found abroad. In 2009, for example, lawmakers in

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Uganda famously debated a bill critically labeled by Western LGBT activists as the “kill the gays” bill.98 In fact, the bill would have criminal- ized “the off ense of homosexuality” (punishable by life in prison) and introduced a set of “aggravating” factors under which that off ense could be punishable by death. These factors included seven possible scenarios, including sex with a minor, sex with a person living with a disability, and any homosexual act committed by a person living with HIV.99 The death penalty clause was ultimately removed from the bill when it was fi nally signed into law in 2014 and was replaced by life imprisonment; it was soon thereafter struck down by the country’s Constitutional Court.100

These cases illustrate how the logic of criminalizing HIV has been pro- pelled at least in part by homophobia. For legislators who held antigay beliefs such as those expressed on the Nevada Senate fl oor by Senator Rawson, AIDS provided a scientifi c glaze for their eff orts to crack down on gay sex—a cover that allowed Senator Rawson to insist that he was not motivated by antigay morality but instead by a desire to promote public health. These strategies echo those of early twentieth-century eugenicists, who used pseudoscience to argue for racist policies in the name of promot- ing population health.101 In this case, however, they resulted in a set of still-standing policies that criminalize people living with HIV.

an epidemic of legislation: “lawmaker zero” and the institutionalization of hiv criminalization

When Ronald Reagan’s Presidential Commission on the HIV Epidemic issued its fi nal report in 1988, it issued a forceful call for criminaliza- tion. In the commission’s view, HIV-specifi c criminal laws “would pro- vide clear notice of socially unacceptable standards of behavior specifi c to the HIV epidemic and tailor punishment to the specifi c crime of HIV transmission.”102 The commission was made up of thirteen experts and leaders, including doctors, policy makers, and other authority fi gures. Only one elected offi cial joined them: Illinois representative Penny Pul- len, a conservative lawmaker who would go on to become a champion of the antiabortion movement.

Before Representative Pullen joined the antiabortion movement, she cut her teeth fi ghting for punitive policies against people living with HIV. In 1988, her infl uence was even noted by one Missouri newspaper, which reported that “Illinois Rep. Penny Pullen, R-Park Ridge and a member of President Ronald Reagan’s AIDS task force, led the

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forces in the Illinois Legislature seeking mandatory contact tracing, quar- antines and other coercive measures to combat the deadly disease.”103 In addition to serving on the presidential commission, Representative Pullen also contributed to a 1989 report on AIDS policy from the American Legislative Exchange Council (ALEC), a conservative think tank that drafts and disseminates model legislation to state lawmakers.

Evidence suggests that Representative Pullen was a key fi gure behind mobilizing both the presidential commission and ALEC to take a strong stance in favor of criminalization. By the time both reports were issued in 1988, the evidence already presented in this chapter clearly showed that the path to criminalization had been well laid: state governments from Florida to Nevada had already approved HIV-specifi c criminal legislation. Yet, these infl uential reports helped to institutionalize the argument in favor of criminalization and served to disseminate the con- cept to lawmakers across the country.

It would be impossible to trace the criminalization of HIV back to one lawmaker, state, or interest group, as Randy Shilts tried to do with HIV in his “Patient Zero” narrative that drove his dramatized account of the early years of AIDS, And The Band Played On. In that book, Shilts famously laid the epidemic at the feet of one promiscuous French Canadian gay male fl ight attendant who was said to have helped cata- pult the epidemic across the Americas. As discussed in chapter 1, we now know that the concept of a Patient Zero was a fantasy invented by the book’s publisher to drive sales. But this chapter concludes with an eff ort to rehabilitate Shilts’s concept by using it to analyze how one state and one lawmaker played an outsize role in sparking a diff erent kind of epidemic—not of contagion, but of legislation.

In 1989, ALEC issued its fi nal report on AIDS policy, The Politics of Health: A State Response to the AIDS Crisis.104 The working group behind the report included over two dozen members of both the private sector (pharmaceutical and insurance companies) and the public sector (mostly conservative state legislators). The 161-page report included model legislation on a range of HIV-related issues, including public edu- cation, insurance regulations, partner notifi cation, and the mandatory screening of prisoners. One section of the report titled “Extraordinary Situations” included two coercive proposals: the “Model HIV Assault Act” and the “Model Emergency Public Safety Measures Act.” The lat- ter related to quarantine and isolation procedures for people living with HIV. The former presented states with a model statute for criminalizing the actions of people living with HIV.

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In a 2013 report, investigative journalist Todd Heywood interviewed the author of the 1989 ALEC report, Michael Tanner, to understand what had prompted ALEC to include this model statute proposal.105 The author recalled that it was Representative Penny Pullen who fi rst proposed the idea; although she had not served on the working group that drafted the report, she was invited to testify before the working group (presumably given her experience as a member of the presidential commission). According to Heywood, “Tanner said he recalls that former Presidential Commission member Pullen, who testifi ed before the ALEC working group, introduced the Model HIV Assault Act dur- ing her testimony.” Pullen declined to comment on the story.

Representative Pullen would have had experience in drafting such legislation. Earlier that year, she had acted as lead house sponsor for Illinois Senate Bill 1180 of 1989, a bill that would have enacted HIV- specifi c criminal penalties. On June 8, 1989, she introduced an amend- ment in the House Committee on the Judiciary that gutted the entire bill and replaced its contents with the following language:

Sec. 12–16.2. Criminal Transmission of HIV. A person commits criminal transmission of HIV when he or she, knowing that he or she is infected with HIV:

1) engages in intimate contact with another; 2) transfers, donates, or provides his or her blood, tissue, semen,

organs, or other potentially infectious body fl uids for transfusion, transplantation, insemination, or other administration to another; dispenses, delivers, exchanges, sells, or in any other way transfers to another any nonsterile intravenous or intramuscular drug paraphernalia.

For purposes of this Section, a) “HIV” means the human immunodefi ciency virus or any other

identifi ed causative agent of acquired immune defi ciency syndrome. b) “Intimate contact with another” means the exposure of a mucous

membrane of one person to a bodily fl uid of another person. c) “Intravenous or intramuscular drug paraphernalia” means any

equipment, products, or material of any kind which are peculiar to and marketed for use in injecting a substance into the human body.

Nothing in this Section shall be construed to require that an infection with HIV has occurred in order for a person to have committed criminal trans- mission of HIV. It shall be an affi rmative defense that the person exposed knew that the infected person was infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that knowledge.

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Making HIV a Crime | 125

A person who commits criminal transmission of HIV commits a Class 2 felony.

Section 2. This Act shall take eff ect upon becoming a law.106

She did not invent this language specifi cally for Senate Bill 1180. Instead, she lifted it directly from her bill in the house, House Bill 1871. That bill was amended slightly, resulting in the following language when it was fi nally approved by both legislative bodies (diff erences from Senate Bill 1180 are highlighted in bold):

Sec. 12–16.2. Criminal Transmission of HIV. (a) A person commits criminal transmission of HIV when he or she, knowing that he or she is infected with HIV:

(1) engages in intimate contact with another; (2) transfers, donates, or provides his or her blood, tissue, semen,

organs, or other potentially infectious body fl uids for transfusion, transplantation, insemination, or other administration to another; or

(3) dispenses, delivers, exchanges, sells, or in any other way transfers to another any nonsterile intravenous or intramuscular drug paraphernalia.

(b) For purposes of this Section:

“HIV” means the human immunodefi ciency virus or any other identifi ed causative agent of acquired immunodefi ciency syndrome.

“Intimate contact with another” means the exposure of the body of one person to a bodily fl uid of another person in a manner that could result in the transmission of HIV.

“Intravenous or intramuscular drug paraphernalia” means any equipment, product, or material of any kind, which is peculiar to and marketed for use in injecting a substance into the human body.

(c) Nothing in this Section shall be construed to require that an infection with HIV has occurred in order for a person to have committed criminal transmission of HIV.

(d) It shall be an affi rmative defense that the person exposed knew that the infected person was infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that knowledge.

(e) A person who commits criminal transmission of HIV commits a Class 2 felony.

Both bills were ultimately approved by the Illinois legislature, but the governor vetoed the senate version due to their redundancy.

Representative Pullen’s legislation bears a striking resemblance to the Model HIV Assault Act disseminated to state lawmakers by ALEC in its

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report issued later that year.107 That model legislation reads as follows (diff erences from House Bill 1871 are highlighted in bold):

Section 2. (A) A male or female commits the crime of HIV Assault if, know- ing that he or she is infected with the Human Immunodefi ciency Virus (HIV), he or she:

(1) engages in intimate contact with another; (2) transfers, donates, or provides his or her blood, tissue, semen,

organs, or other infectious body fl uids for transfusion, transplanta- tion, insemination, or other administration to another; or

(3) dispenses, delivers, exchanges, sells, or in any other way transfers to another any nonsterile intravenous or intramuscular drug parapher- nalia used by said person.

(B) HIV Assault is a felony and shall be punished by a fi ne of not more than $20,000, or imprisonment in a state correctional institution for not less than one year or more than several years, or both.

(C) Nothing in this section shall be construed to require that an infection with HIV has occurred in order for a person to have committed HIV assault.

Section 3. Any individual who commits the crime of HIV Assault under Sec- tion 2 of this Act shall be civilly liable for damages if another individual becomes infected with the human immunodefi ciency virus as a result of such violation.

Section 4. If shall be an affi rmative defense that the person exposed knew that the infected person was infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that knowl- edge.

Section 5. For purposes of the Act: (A) “HIV” means any human immunodefi ciency virus (HIV) or any

other identifi ed causative agent of acquired immune defi ciency syndrome (AIDS).

(B) “Intimate contact” means the exposure of the body of one person to the bodily fl uid of another person in a manner that can transmit the HIV virus.

(C) “Intravenous or intramuscular drug paraphernalia” means any equipment, products, or material of any kind that is peculiar to and used for injecting a controlled substance into the human body.

Apart from the penalties outlined (civil liability and the specifi ed term of imprisonment), Illinois House Bill 1871 and ALEC’s Model HIV Assault Statute are nearly identical. Notably, of the eight states that had enacted HIV exposure or nondisclosure laws before 1989 (Florida, Georgia, Idaho, Michigan, Missouri, Oklahoma, South Carolina, and

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Washington), none enacted legislation that bears any resemblance to the ALEC model law. Representative Pullen’s legislation appears to be the only plausible source of inspiration.

In the wake of the ALEC report, legislators in seven states would go on to introduce twenty-two bills between 1990 and 2004 that use a structure similar to ALEC’s model statute—suggesting that it helped to plant the seed of criminalizing HIV in state legislatures across the coun- try.108 However, as all but one of the twenty-two bills that use language similar to the ALEC model statute failed or was vetoed, the legacy of Representative Pullen’s eff orts is not that her bill’s language was per- fectly adopted by states across the country. Instead, her legacy lives on in the inspiration her eff orts provided for other lawmakers around the country. This was especially true for Illinois’s southwestern neighbor, Missouri. Even before Illinois passed its felony HIV-specifi c criminal bill in 1989, offi cials in Missouri were citing Representative Pullen’s eff orts to enact punitive measures against people living with HIV. As previously noted, the St. Louis-Dispatch specifi cally cited Representa- tive Pullen’s eff orts to enact coercive policies against people living with HIV, such as mandatory contact tracing and quarantines.109 Those measures are credited with inspiring Missouri lawmakers to enact simi- lar eff orts in Missouri, including an criminal HIV disclosure law later that year.

Further, even though Representative Pullen’s statute was not widely adopted verbatim, it was cited frequently by other state lawmakers in their debates over whether and how to criminalize HIV. When Nevada lawmakers considered Senate Bill 514 in 1993, committee records reveal that they looked to Illinois for clarifi cation regarding what lan- guage to use to describe the off ense. Nevada lawmakers were concerned that “married couples or people in a relationship . . . [should] not be made to be committing criminal conduct.”110 They noted that the lan- guage devised by Illinois lawmakers regarding an affi rmative defense for individuals who have disclosed their status “would take care of one of the major concerns of the committee.”111 The Nevada lawmakers repeatedly turned to Illinois’s statute during committee meetings to help them consider the issue and draft amendments to their own bill.112 Thus, although the Nevada statute does not perfectly mirror Illinois’s HIV- specifi c criminal law, aspects of the Illinois law did directly inform Nevada lawmakers as they drafted their own bill.

A similar story played out in 1995 when Alaska lawmakers consid- ered Senate Bill 91. Although the language of the bill is not identical to

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Illinois’s statute, it does rely on a highly similar structure that outlines the prohibition of intimate contact, the transfer of bodily fl uids or organs, and the sharing of drug paraphernalia. Committee records reveal that the legislative aide to Republican representative Scott Ogan—the bill’s sponsor –made repeated calls to Illinois offi cials to seek counsel in drafting the legislation:

[Rep. Ogan’s aide] informed the committee that he had contacted numerous staff attorneys in the Attorney General’s offi ce in Illinois for information. He spoke to people at the policy making level, and he spoke with actual prosecutors who tried cases like this. Illinois law is similar to Alaska’s. He asked for input about any problems that we could address in our law and they brought up two concerns. One was that there was a challenge that went all the way to the Supreme Court; it was challenged because of the lack of defi nition to intimate contact. They said it should be defi ned further. Still, the Illinois Supreme Court upheld their looser language with less defi nition.

The fact that the Illinois law had survived a constitutional challenge— in spite of its “looser language”—was later cited as an important justifi - cation for Alaska lawmakers to use it as a model. After the 1995 bill failed, lawmakers introduced similar legislation in 1997. Senate Bill 17 was virtually identical to the Illinois statute. Indeed, at a committee hear- ing of the bill, a staff member for the bill’s sponsor, Republican senator Robin Taylor, noted that “in drafting S.B. 17, the Illinois statute was used almost verbatim.”113

The bill read as follows (diff erences from Illinois House Bill 1871 are highlighted in bold):

Sec. 11.66.160. Criminal transmission of HIV. (a) A person commits the crime of criminal transmission of human immunodefi ciency virus (HIV) if the person, knowing that the person is infected with HIV,

(1) voluntarily engages in intimate contact with another person; (2) transfers, donates, or provides the person’s blood, tissue, semen,

organs, or other potentially infectious body fl uids for transfusion, transplantation, insemination, or other administration to another, excluding perinatal transmission; or

(3) dispenses, delivers, exchanges, sells, or in any manner transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia.

(b) In a prosecution under this section, (1) it is an affi rmative defense that the person exposed to HIV by the

intimate contact, the transfusion, transplantation, insemination, or other administration or the transfer, knew that the defendant was

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Making HIV a Crime | 129

infected with HIV, knew that the action could result in infection with HIV, and consented to the action with that knowledge;

(2) it is not necessary to show that the victim has been actually infected with HIV for the defendant to be convicted.

identifi ed causative agent of acquired immunodefi ciency syndrome; (2) “intimate contact” means sexual penetration or any contact in

which the body of one person is exposed to a body fl uid of another person in a manner that could result in the transmission of HIV;

(3) “intravenous or intramuscular drug paraphernalia” means any equipment, product, or material of any kind that is peculiar to and marketed for use in injecting a substance into the human body.

(d) Criminal transmission of HIV is a class B felony.114

But the language of Illinois’s statute was not the only source of inspira- tion for Alaska lawmakers. In committee records for Senate Bill 17, lawmakers reference the Illinois statute in some way thirty-two times. For example, they cite fi gures from the Illinois Department of Health regarding the annual number of HIV tests before and after the bill’s pas- sage. To refute the common charge that criminalizing HIV will nega- tively impact the number of people seeking HIV tests, Alaskan lawmak- ers cited fi gures from Illinois, noting that the number of tests had not changed in the six years since the Illinois law had been passed.115

Senate Bill 17 went on to be approved by the Alaska legislature, but Governor Tony Knowles used his veto power to block the bill’s passage. Nonetheless, the debate over its passage is one end of a thread of Illinois infl uence and Representative Pullen’s legacy that is woven into the history of HIV criminalization. No other state is cited as frequently in the archives obtained for this research project, nor does any legislative leader have such a lasting infl uence as Representative Pullen. Indeed, she is as close to “Lawmaker Zero” as one could fi nd in the history of HIV criminalization in the United States. Her eff orts as a moral entrepreneur helped infl uence both the presidential commission and ALEC to use their resources to push for HIV-specifi c criminal laws—prompting almost two dozen states to consider legislation directly modeled on the Illinois statute.

an epidemic of criminalization

As this chapter has demonstrated, AIDS is not just a viral epidemic—it is also an epidemic of laws, bills, committee hearings, legislative debates,

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130 | The Criminalization of Sickness

and bureaucratic administration. Today, twenty-eight states have mis- demeanor or felony laws on the books that make it a crime for people living with HIV to have sex without disclosing their HIV status or to more generally “expose” another to the disease. In forty-fi ve states across the country, lawmakers considered over 150 criminal bills between 1985 and 2014 targeting HIV (for a list of bills identifi ed and studied for this chapter, see appendix 2). Figure 14 illustrates where

States that enacted criminal HIV exposure or nondisclosure laws

States that vetoed criminal HIV disclosure or nondisclosure laws

States that passed and then repealed criminal HIV exposure or nondisclosure laws

States that considered but voted down criminal HIV disclosure or nondisclosure laws

States that have not attempted to enact criminal HIV disclosure or nondisclosure laws

MT ND

IL IN OH

LATX

VT NH

NJ DE

CT NE

MS AL GA

TN OK

figure 14. HIV-specifi c criminal legislation, by state. Design: Jonathan Lefrançois. Illustration: Justin Karas for Pulp & Pixel.

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Making HIV a Crime | 131

bills that would have criminalized HIV exposure or nondisclosure in the United States were considered and enacted, and where they failed.

To continue the epidemiological metaphor, the epidemic of HIV-spe- cifi c criminal laws has spread throughout the country, but what are its root causes? This chapter identifi ed four broad trends that facilitated the spread of HIV-specifi c criminal laws: high-profi le failures to apply general statutes, organized aggravation by police against sex workers, the decriminalization of sodomy, and the institutionalizing infl uence of Lawmaker Zero. Looking at these trends collectively, we can identify four underlying drivers of criminalization that cut across them:

1. social stigma, including HIV stigma, homophobia, and stigma against sex work;

2. sensational media reports of arrests of HIV-positive defendants and failed prosecutions;

3. moral entrepreneurs such as Lawmaker Zero who campaigned to label HIV as a criminal problem; and

4. interest-group lobbying by organizations such as police depart- ments and ALEC.

Any one of these factors was not suffi cient. Many states that did not pass HIV-specifi c criminal legislation presumably had legislators who held antigay attitudes, or prominent public offi cials who called for crim- inalization but did not fi nd support in the legislature. In combination, however, the four factors frequently resulted in states enacting HIV- specifi c criminal laws.

Of course, the fact that homophobia and fear of sex work drove legislators to enact HIV-specifi c criminal laws does not mean that these laws went on to be used specifi cally against these groups. As the next two chapters reveal, the application of these laws has not followed pre- dictable patterns. The factors that drove the epidemic of criminal legis- lation are not necessarily the same as those that drive how those laws are enforced.

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132

On June 24, 1991, Michigan governor John Engel signed extradition papers to request that offi cials in New York State remand Jeff rey H.1 to Michigan law enforcement custody.2 Jeff rey was the fi rst person charged in Michigan under a 1988 law that made it a felony for people living with HIV to engage in “sexual penetration” without fi rst disclosing their HIV status. Despite going into eff ect in 1988, the law had not yet been tried in court when a young man came to Lake County prosecutor Michael Riley to report that he had had oral sex with Jeff rey once and that he did not disclose being HIV positive.

By the time the complainant had stepped forward, however, Jeff rey had moved back home to Dutchess County, New York, to live with his family. Riley told the press that he was aggressively pursuing the case because “I’d like to see that [Jeff rey] does not give any more death notices out. . . . He knew it was criminal activity and he did it anyway.”3 Jeff rey fought the extradition on the grounds that New York did not have an HIV disclosure law on the books at the time; a judge rejected his arguments and New York governor Mario Cuomo signed extradition papers to send Jeff rey back to Michigan. He was arrested at work on June 15, 1991.4

The case immediately became fodder for sensational media coverage, landing on the pages of USA Today, the San Francisco Chronicle, gay and lesbian publications such as the Advocate, and dozens of newspa- pers across the country. The fact that it involved HIV, extradition hear- ings, and a gay man accused of cheating on his male lover with another

chapter 5

HIV on Trial Stigma and the Illusion of Harm in American Courtrooms

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HIV on Trial | 133

man helped propel the coverage for nearly a year between Jeff rey’s arrest in June 1991 and sentencing in May 1992. According to testimony in court, Kevin, the complainant, had become aware of Jeff rey’s HIV-posi- tive status only months later when he telephoned Jeff rey’s former resi- dence. Jeff rey did not answer, however, because he had moved to New York; instead, his ex-lover of several years, Patrick, picked up the phone. Kevin testifi ed that Patrick (illegally) informed him of Jeff rey’s HIV- positive status, advising him that he “needed to be checked.”5

AIDS activists protested the case, characterizing Patrick as a “jilted lover” who was “looking to make a name for himself.”6 Patrick testifi ed in court that he had split up with Jeff rey in December 1990 after Jeff rey had repeatedly cheated on him with other men: “[Jeff rey] couldn’t stay in a monogamous relationship, and we both agreed that he should go.”7 Once the case had gained national media exposure, Patrick appeared on the nationally syndicated talk show Donahue to discuss it and gave numerous press interviews.8 After the prosecution bungled its eff orts to legally secure medical evidence that would prove Jeff rey’s HIV status, Patrick stepped in to aid the prosecutor by providing a doctor’s billing statement found at home that documented Jeff rey’s treatment for “HIV Sinusitis.”9

Notably, precise estimates of the risk of oral transmission did not exist in 1991. There were case reports involving newly diagnosed gay men who reported engaging in only oral sex in the months preceding their infection.10 However, labeling the practice “risky” remained con- troversial because quantitative studies found that oral sex was not sta- tistically associated with infection.11 Jeff rey’s defense attorney argued that his client should not be held liable under the law because Jeff rey had been counseled at an HIV support group “that protection was not needed for oral sex.”12 In a written brief, the judge squashed any plans the defense may have had for using the risk of oral sex to rebut the charges. The judge ruled that although Jeff rey might have “been of the opinion” that oral sex was less dangerous than anal sex, “that does not mean that the statute was not violated.”13

Despite ruling that the level of risk was immaterial to the case, the judge would go on to defend the law as necessary to protect society from the homicidal behavior of HIV-positive people like Jeff rey. Responding to defense arguments that its client was being discriminato- rily prosecuted because he was gay, the judge argued in a written brief that the prosecutor was simply interested in ensuring that Jeff rey should “not be allowed to kill others”:

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134 | The Criminalization of Sickness

Evidently the Defendant feels he is being focused upon because of his homo- sexual status, but the Prosecutor’s concern as revealed by the news articles submitted by Defendant that persons not be allowed to kill others refl ects a societal concern which situationally involves [Jeff rey], but does not refl ect that the Prosecutor is convinced all gays should be punished or that the problem is limited to the gay community.14

Presumably being “allowed to kill” would entail putting another person in harm’s way. But neither the wording of Michigan’s disclosure law nor the judge’s interpretation of that statute required the prosecution to prove that such harm existed—or that the defendant acted with crimi- nal intent. As discussed in chapter 4, most states with HIV-specifi c crim- inal laws, Michigan included, do not require proof that the defendant intentionally infected his or her partner, or even that a sexual partner was put at risk of acquiring HIV infection; the law merely requires the prosecution to prove that an HIV-positive person failed to inform a sexual partner of his or her infection. Words—or rather their absence— constitute the off ense.

In the face of these rulings, Jeff rey had little recourse for presenting a compelling defense. He accepted a deal brokered with the prosecutor, pleaded no contest, and was sentenced to one year in jail and fi ve years’ probation.

Although Jeff rey was not the fi rst person in America to be charged under an HIV-specifi c criminal law, his case was by far the most widely publicized when news of his prosecution broke in 1991.15 In Michigan, he was the sole defendant convicted during the fi rst four years that state’s law was in eff ect, but fourteen defendants were convicted during the four-year period following his conviction. A prescient media report published the day Jeff rey was convicted cited a number of investigations across the state that “have proceeded quietly in the wings as authorities carefully followed the progress of the AIDS disclosure case in Lake County.”16 That report quoted Prosecutor Michael Riley saying, “I don’t have any doubt this will make it easier for [other prosecutors]. . . . They now know what worked and what mistakes to avoid.”17 Nation- wide, cases had been scattered and rare before Jeff rey’s conviction, but convictions became commonplace in the wake of his case. As such, his conviction marks the beginning of a new era of HIV criminalization in the United States.

As this chapter will show, prosecutors and judges adopt stigmatizing views of HIV in their arguments against HIV-positive defendants. State laws do not require them to prove that the defendant put anyone in

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HIV on Trial | 135

harm’s away or that they intended to do so, yet the explosive rhetoric that characterizes HIV as a death sentence and defendants as killers cre- ates the illusion of harm. These assertions might have been more under- standable in the days when an HIV diagnosis was largely terminal. But treatment introduced in 1996 radically transformed the lives of people living with HIV, reshaping HIV from a terminal illness into a chronic, manageable disease and rendering those who are on treatment virtually noninfectious (as discussed in chapter 2). Despite these advances, even in cases in which defendants could not have plausibly infected their partner, judges scold defendants for being a deadly threat to society.

In many ways, the treatment of HIV under the law mirrors broader trends in how prosecutors and judges harness stigma to advance their arguments in American courtrooms. This chapter is titled “HIV on Trial” to highlight the ways in which prosecutors and judges often wield outdated, inaccurate, and stigmatizing assertions about HIV and the alleged crimes in order to justify incredibly harsh sentences. The title borrows from the work of criminologists Charis Kubrin and Erik Neil- son, who have examined how rap music lyrics are introduced as evi- dence in criminal cases against amateur rappers—a trend they describe as putting “rap on trial.”18 In those cases, “prosecutors misrepresent rap music to judges and juries, who rarely understand the genre conven- tions of gangsta rap or the industry forces that drive aspiring rappers to adopt this style.”19 This chapter adapts this concept to examine the stig- matizing rhetoric used by both prosecutors and judges in HIV-related prosecutions in Michigan and Tennessee—both in actual jury trials and in the far more numerous cases resolved through plea bargaining.

In the courtroom, the words used to represent and describe HIV and HIV-positive defendants are far from toothless talk. Lawyers and judges wield stigmatizing rhetoric as a hammer; ignorant and prejudicial views of HIV serve as justifi cations for harsh sentences demanded by prosecu- tors and imposed by judges. At times, the law on the books appears as almost an afterthought, as judges and prosecutors fi nd creative ways to work around or simply ignore sections of the written law that would appear to limit the law’s scope. In invoking such misleading and stigma- tizing rhetoric, trial courts codify outdated and inaccurate depictions of HIV into case law—thereby opening the door to more cases, more con- victions, and more stigmatizing rhetoric. While some readers may think of law enforcement as a straightforward translation of the laws on the books, stigmatizing language is an important moderating variable that shapes the application of HIV law in practice. In this sense, this chapter

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echoes the work of other sociolegal scholars who have argued that the language used in the courtroom is more than “just words”; in shaping how HIV is governed under the law, stigmatizing rhetoric is a function of power.20

This chapter analyzes fi fty-eight convicted cases involving fi fty-four defendants under Michigan’s 1988 felony HIV disclosure law (95 per- cent of all convictions in that state through 2010) and forty-fi ve con- victed cases involving forty-two defendants under Tennessee’s 1994 felony HIV exposure law (see table 2; fi gure 15 shows the number of HIV cases in those states from 1991 to 2010).21 The bulk of this analysis focuses on the 6,654 pages of transcripts obtained from courtroom pro- ceedings associated with 194 courtroom proceedings from seventy-eight criminal cases.22 Notably, these include nine cases that actually went to trial (six in Michigan and three in Tennessee) as well as the far more numerous cases in which the defendant entered a plea of guilty or no contest. While cases that involve plea bargains can be brief, they none- theless frequently feature debate over the severity of the sentence that should be imposed; thus, although these defendants are not technically on trial, their cases reveal how HIV shapes the application of the crimi- nal law.

table 2 hiv on trial: by the numbers

Michigan (N = 58)

Tennessee (N = 45)

How case was decided Plea 87.9% 51 87.6% 39 Trial 10.3% 6 6.7% 3 Unknown 1.7% 1 6.7% 3

Type of sentence Probation (including suspended) 13.8% 8 24.4% 11 Jail/prison 86.2% 50 68.9% 31 Unknown – 6.7% 3

Average length of sentence (months) Average term of probation 23.3 52.7 Average term of jail/prison 24.6 77.7 Median length of probation sentence 21 36 Median length of jail/prison sentence 20.5 48

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HIV on Trial | 137

Laws in Michigan and Tennessee are typical of those enacted nation- wide: Michigan law makes it a crime for HIV-positive people to engage in “sexual penetration” (defi ned broadly) without fi rst disclosing their HIV status. Tennessee law is even more broadly construed so as to crim- inalize any form of HIV exposure, including not only sexual contact but also nonsexual contact such as spitting, biting, or scratching. Prosecu- tors and judges apply their state’s law in ways that reinforce and repro- duce HIV stigma.

“a carrier of death”: hiv stigma in early case law

The investigation into Brenda J. was one of those proceeding “quietly in the wings” as Jeff rey’s case unfolded in nearby Lake County, Michigan. Brenda, a thirty-two-year-old White woman living in Muskegon County, was described as having an IQ “above the level considered developmentally disabled.”23 In court, it was revealed that her IQ was 72, which was in fact only two points above the Diagnostic and Statisti- cal Manual of Mental Disorders threshold for a diagnosis of disability.24 After reports surfaced that she was having sex without disclosing her HIV-positive status, local health offi cials sought to have Brenda quarantined under the provisions of the state’s health-threat-to-others statute (discussed in chapter 3), which allows offi cials to confi ne an individual deemed to be a threat to public health.25 The prosecutor

1991–1995

1996–2000

2001–2005

2006–2010

Michigan Tennessee

5 10 15

13 1

10 12

18 14

17 18

figure 15. HIV on trial: Number of cases in Michigan and Tennessee, by year. Source: Trevor Hoppe.

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138 | The Criminalization of Sickness

reported to media outlets that he would also “review potential criminal sanctions.”26

Not long after her civil confi nement ended, Brenda again found her- self in legal jeopardy in July 1994. After frequent complaints to her legal guardian about the foster care home in which she resided, Brenda was allowed to move into what would later be characterized in court as a run-down motel notorious for sex work and drug use.27 Only two days later, Brenda begged her legal guardian for permission to return to the foster care home. She reported that she had been having sex with a man named John, another tenant in the motel; her legal guardian subse- quently reported her sexual activity to the police.

Just as in Jeff rey’s case, both the prosecutor and police utilized unu- sually aggressive tactics to bring the case to court. Approximately two weeks after the alleged sexual encounter, police visited John at his place of employment; courtroom testimony reveals that he initially declined to testify over concerns that, because of her limited intelligence, sexual assault charges could be brought against him. When the preliminary examination hearing began in August 1994 (preliminary examinations, like grand juries, determine if there is suffi cient evidence to indict a defendant), the prosecution informed the court that it could not locate John.28 However, soon thereafter, police arrested and jailed John for failing to pay fi nes associated with six outstanding traffi c off enses (including drunk driving). Although it is not known precisely why police chose to arrest John at this particular point in time (as the six tickets were long outstanding), his confi nement had the eff ect of giving prosecutors leverage to secure his testimony. Prosecutors visited John in jail to off er a deal: testify against Brenda, and they would

1. grant him immunity from prosecution for having sex with Brenda;

2. agree to hear all of the six traffi c cases against him at the same time; and

3. guarantee that all six sentences associated with those six cases would run concurrently, minimizing any time he might be ordered to spend behind bars.29

John fi nally complied and testifi ed against Brenda at the fi nal day of the preliminary exam in December 1994 as well as at trial the following spring.

Brenda’s case was tried by jury in March 1995. Although the prose- cutor only needed to prove that Brenda had engaged in “sexual penetra-

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HIV on Trial | 139

tion” without fi rst disclosing her HIV status, he laid out his case by framing Brenda as a “carrier of death” who needed to be locked up:

She had been told and discussed with her repeatedly that she should not have sex with another person unless she fi rst told them of her HIV status. It was a condition that was made clear to her that . . . could in fact kill another individual, another human being. The facts will show . . . that she knew that she was literally a carrier of death in this situation. . . . It is the facts of this case, that the disease was a fatal one, that in fact she passed it onto another person.30

While these statements prompted a sustained defense objection prevent- ing the prosecutor from making similarly infl ammatory comments again, the image of a “carrier of death” had already been planted in jurors’ minds, as had the prosecutor’s false assertion that she had “passed” the disease on to the complainant (who did not contract HIV).

To make his case, the prosecutor echoed popular tropes of people living with HIV as sexually insatiable and predatory, describing Brenda as acting out of “self- fulfi llment, someone that wanted to satisfy her own sexual desires.”31 Switching to the fi rst person and a rough gram- matical style, the prosecutor told the jury that Brenda did not tell her partners she was positive “because that means that he won’t keep com- ing back to give me more sex and to satisfy my sexual desires.”32 Instead of basing his case on the potential HIV risk Brenda might pose to others in the community, the prosecutor relied on HIV stigma to make his case, painting her as a selfi sh “carrier of death.” These stigmatizing statements served to create the illusion of harm in the place of evidence that Brenda had infected someone.

The prosecutor’s explosive rhetoric mirrors the way many Americans view casual sex: reckless, irresponsible, and ultimately dangerous. HIV stigma serves to compound those social attitudes, creating an opportu- nity for a prosecutor seeking to paint Brenda as a threat to society. These views are further compounded for women with cognitive disabil- ities like Brenda, who have historically been portrayed as sexually threatening.33 Notably, eight of the fi fty-eight defendants convicted in Michigan (13.8 percent) and fi ve of the forty-eight defendants convicted in Tennessee (10.4 percent) had or were suspected of having a mental illness or disability.34

Brenda never denied having sex with the complainant and main- tained that she told him about her HIV status; specifi cally, she claimed that they had discussed the widespread newspaper coverage of her previous quarantine. Nonetheless, the jury found Brenda guilty. At

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sentencing, the judge declared that her irresponsibility while “carrying a deadly weapon” warranted taking her “out of circulation”:

She is carrying a deadly weapon with her and . . . she could go around killing people by her lack of concern. . . . I think she has a feeble understanding of how dangerous she can be in a public setting such as that in which she was placed by her so-called guardian. . . . I feel that, for the protection of our community, that I have to take [Brenda] out of circulation.35

The judge sentenced her to thirty-two months in prison. While Brenda was one of thirteen defendants convicted under Mich-

igan’s HIV disclosure law before treatment was introduced in 1996, only one defendant faced charges under the 1994 Tennessee law during that time. Tennessee law diff ers from Michigan in two important ways, First, unlike under Michigan statute, prosecutors in Tennessee are not limited to prosecuting sexual exposures; the law provides for criminal charges in cases in which an HIV-positive defendant does one of three things:

1. engages in “intimate contact” with another person (defi ned as “the exposure of the body of one (l) person to a bodily fl uid of another person in any manner that presents a signifi cant risk of HIV transmission”);

2. provides, donates, or transfers “potentially infectious body fl uids . . . in any manner that presents a signifi cant risk of HIV transmission”; or

3. sells or shares a nonsterile syringe.36

Second, the Tennessee law includes some consideration of risk—at least on paper. Both the fi rst and second scenarios described under the law stipulates that intimate contact or exposure to bodily fl uids must be done in a “manner that presents a signifi cant risk of HIV transmission” in order to be criminally sanctioned.

On its face, the wording of Tennessee’s statute would seem to rule out prosecuting cases in which the state could not prove that the defend- ant placed a person in harm’s way. In practice, however, this has not been the case. This became apparent in 1995 when the fi rst charges were fi led under the newly enacted statute against a thirty-three-year- old White man named Ronald T. The details of Ronald’s case were not well described in the court proceedings. However, the thin description that was presented in court speaks volumes about the standing of peo- ple living with HIV under Tennessee law. Ronald was arrested in June

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1995 after breaking into the home of a woman and, according to court- room testimony, stealing a “ceramic eagle”37:

Judge: Tell me what you did?

Defendant: On June 9th I entered [a woman’s] house without permission and unlawfully took a ceramic eagle.

Judge: And then what happened?

Defendant: After that I was apprehended by Sumner County police depart- ment, and there was a struggle between me and the offi cers, and that was basically it.

Judge: Did you spit on the offi cer?

Defendant: I was sprayed with Mace and stuff . I can’t say what happened.

Judge: You feel it is in your best interests to enter this plea?

Defendant: Yes, ma’am.

Although he enters a no contest plea, Ronald does not fully corroborate the offi cer’s story. He perfectly parrots the case presented by the prose- cutor in some of his answers (“I entered [a woman’s] home without permission and unlawfully took a ceramic eagle”), but when he is asked if he actually spat on the offi cer, he states that he was sprayed with Mace and “can’t say what happened”—suggesting that he may not have fully believed the offi cer’s account. Nonetheless, his plea was accepted and he was sentenced to three years in prison for spitting on the offi cer.

Ronald’s case represents the fi rst of fi ve convicted cases between 1995 and 2010 in Tennessee involving an allegation that an HIV-posi- tive defendant spit at, bit, or got blood on a police offi cer. Despite the fact that the law stipulates that a transfer of a body fl uid must be shown to pose a “signifi cant risk” of HIV transmission, the word risk is never so much as uttered in court in any of these cases. Although there has never been evidence that spitting is likely to transmit HIV, media cover- age of Ronald’s case noted that “the offi cer has so far tested negative for the virus, but must be tested periodically, offi cials said.”38

If Tennessee law explicitly stipulates that there must be a “signifi cant risk of transmission,” why was risk never mentioned in these proceed- ings? Perhaps it is because many Americans mistakenly believe that HIV is transmitted through saliva. In 1985, for example, a New York Times–CBS poll found that 32 percent of Americans believed that kiss- ing could transmit HIV.39 In 2001, a Kaiser Family Foundation poll found a remarkably similar proportion—31 percent—of Americans still held this belief.40 Five years later, the Kaiser Family Foundation found

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that the number of Americans who believed HIV could be transmitted through kissing had actually increased to 37 percent. Although polling data specifi c to Tennessee is not available, a 2015 survey of residents of a Southern neighbor, Georgia, found that 33 percent of respondents believed kisses can transmit HIV.41

Layered on top of this pervasive belief about HIV is the fact that these cases involved HIV-positive defendants engaging in what police characterize as assaultive behavior against law enforcement. In short, prosecutors may not have felt that they needed to prove that spitting, biting, or getting blood on the uniform of an offi cer posed a signifi cant risk because many Americans would simply presume that having HIV necessarily makes these defendants a threat.

The cases against the defendants discussed in this section reveal an important distinction in how HIV stigma operates in American court- rooms.42 Prosecutors and judges in Jeff rey’s and Brenda’s cases invoked explicit stigma in their rhetoric about HIV and people living with the disease. They explicitly labeled Brenda as a selfi sh “carrier of death” and Jeff rey as handing out “death notices.” This rhetoric served to cre- ate the illusion of harm in the absence of evidence that these defendants endangered their partners. The case against Ronald, on the other hand, exhibits implicit stigma, an unspoken, unconscious form of bias. Although the prosecutor did not use the same kind of explosive rhetoric that the prosecutors in Brenda’s or Jeff rey’s case used, the case against Ronald implicitly relied on the notion that spitting poses a “signifi cant risk” (a notion then disseminated to the public through the media, which reported that the offi cer in question “must be tested”).

As the rest of the chapter will demonstrate, the stigma codifi ed into case law through these early convictions had implications for years to come. Despite the introduction of eff ective treatment in 1996 that reshaped HIV into a chronic, manageable disease, the stigma of these early years appears to trump science.

“death to innocent third parties”: hiv on trial in an era of effective treatment

In 1999, Oakland County, Michigan, prosecutors charged Franklin C. for not telling a new roommate that he was HIV positive before they engaged in oral and anal sex. According to testimony, the complainant in the case did not ask Franklin, a thirty-four-year-old White gay man, about his HIV status until the following day. When the defendant then

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revealed his HIV status, the complainant “basically freak[ed],” returned home, found the defendant’s HIV medication, and went to a hospital where he was prescribed post-exposure prophylaxis (a course of medi- cine that can reduce one’s risk of contracting HIV after an exposure takes place). Hospital attendants also performed a rape kit and encour- aged the complainant to contact the police.43 Franklin was subsequently charged; he pleaded not guilty and exercised his right to trial by jury.

The police had secured a signed confession from Franklin nine months after the alleged incident, in which he wrote, “I didn’t hide it. I didn’t say I was. I had took meds and had meds all over my room, et cetera. I had thought he knew.”44 However, Franklin testifi ed that he had, in fact, told him that he was HIV positive. His defense also aimed to counter the prosecution’s claim that Franklin had exposed the complainant to “that deadly virus” by arguing that Franklin’s viral load (the amount of virus in his blood) was “undetectable” and thus the risk of transmission was low.45 As discussed in chapter 2, studies now defi nitively show that treat- ment renders people living with HIV virtually noninfectious.46 However, although many had long suspected this to be the case, nearly a decade would pass after Franklin’s trial before any major scientifi c statement on the subject (the “Swiss statement” of 2008).47 Given the signed confes- sion and a recent Michigan Supreme Court ruling upholding the statute’s constitutionality, basing the defendant’s defense on viral load may have been the only strategy apparent to his counsel.48

The prosecution argued that the defendant was obliged to disclose even if his viral load was undetectable: “It’s like saying, ‘Well, I’m only a little bit pregnant.’ I mean, you’re either pregnant or you’re not preg- nant.”49 In explaining his argument, the prosecutor directly quoted from the recent Michigan Court of Appeals decision in People v. Jensen (On Remand) (1998), which had affi rmed the HIV disclosure law’s con- stitutionality, in part, by ruling that not disclosing one’s HIV status leads to “death to innocent third parties”:

If you know you have AIDS or you know you have HIV and you don’t dis- close, well, what does that achieve? “Only further dissemination of a lethal, incurable disease, in order to gratify the sexual or other physical pleasure of the already-infected individual.” And I am reading off of something here because I don’t want to get the words wrong . . . “Indeed, the probable results accompanying the nondisclosure are fairly predictable: Death to innocent third parties.”50

In only four of the fi fty-eight Michigan cases (and fi ve of the forty-three Tennessee cases) did the complainant or complainants allege to have

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contracted HIV from the defendant—less than 10 percent overall. Despite this, prosecutors and judges (and even the Michigan Court of Appeals) frequently invoked analogies to murder and death sentences throughout the study period.

Because jury trials were rare in these cases, the defense and prosecu- tion rarely engaged in arguments over HIV in contesting the defendant’s guilt; the vast majority of defendants pleaded guilty or no contest at the outset. In that sense, Franklin’s case is quite rare. For example, none of the three defendants found guilty at trial in Tennessee raised any issues related to HIV in their defense; instead, those cases boiled down to whether or not the jury believed the complaining witness’s testimony. In general, beyond securing medical records to prove that the defendant had been diagnosed as HIV positive, prosecutors rarely need more than the testimony of the complainant in order to press charges. For these reasons, the fact that Franklin’s viral load was even brought up as a potential factor makes his case unique. His sentencing hearing, on the other hand, closely resembles the way that HIV was litigated in Michi- gan and Tennessee courtrooms.

When a felony defendant in Michigan is sentenced, the judge com- pletes a spreadsheet containing an assortment of variables that assigns points based on the severity of the crime in question. The higher the score, the more time the defendant will spend behind bars or on proba- tion. Although courtroom testimony directly showed that Franklin’s partner tested HIV negative after the incident, the prosecutor argued that the off ense variable (OV) for “physical injury to a victim” should be scored at 25 points, defi ned as “life threatening or permanent inca- pacitating injury occurred to a victim.”51 Despite defense objections, the judge agreed and added 25 points to his off ense score: “I cannot think of anything more life-threatening.”52 Scolding Franklin for his “callous disregard for life,” the judge ultimately sentenced Franklin to fi fty-eight months to fi fteen years in prison.53

Commonly used HIV tests have a window of up to six months between an exposure and the ability to detect an infection—although the CDC reports that 97 percent of people will develop detectable anti- bodies within three months after infection.54 (Called antibody tests, these tests do not test for the virus but for the body’s immune response to it.) Yet, in a dozen cases analyzed for this chapter, prosecutors and judges invoked the lingering possibility of infection, even in cases where the window period had clearly lapsed. This rhetoric served to create the illusion of harm in order to justify harsh punishment. For example,

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Montcalm County, Michigan, offi cials sentenced Gerald C., a thirty- two-year-old White man, eight months after the last sexual encounter alleged by four women. The prosecutor had argued that “they’re not out of the woods yet. They still may come down with this fatal dis- ease.”55 The judge agreed, sentencing Gerald to thirty to forty-eight months in prison: “You have impacted, as [the prosecutor] has indi- cated, you know, potentially given four others a life sentence and that’s something this Court cannot overlook.”56

In Tennessee courtrooms, some victims made dramatic claims about the possibility of becoming infected years after having sex with the defendant. Tennessee law expressly allows crime victims to testify at sen- tencing to provide what is known as “impact testimony” about the impact the crime had on their life.57 The inaccurate testimony of victims who had no medical training or expertise has aff ected sentencing in some cases. For example, Antonio F. pleaded guilty in 2004 in Davidson County Circuit Court to charges that he failed to disclose to a woman with whom he had an ongoing sexual relationship. Antonio was sen- tenced eight months after their relationship ended. The woman testifi ed that she had so far tested negative, but added, “I can show up positive anywhere up to ten years.”58 The prosecutor drew on these statements to argue for harsh punishment, saying that the woman has “to go for the next ten years and wonder what is going to happen” with her life.59 This argument appeared to hold sway over the judge, who ruled that Antonio would serve ten years’ probation—by far the lengthiest probation term handed down in either state. As part of his sentence, the judge ordered him to pay for the woman to be tested daily during that ten-year period: “That means for ten years you are also going to be paying for . . . the amount of money it takes them to test every day. I don’t care if they’ve got TennCare or other insurance. I want you to pay for their testing.”60

Scott B., a thirty-six-year-old White male, pleaded guilty in 2007 in front of the same Davidson County Circuit Court judge, Judge Cheryl A. Blackburn., who had previously heard Antonio’s case. Scott admitted having sex twice with a woman he was dating without disclosing his HIV-positive status. Four months after their sexual contact ended, the woman took the stand at Scott’s sentencing hearing to claim that she would never know whether or not Scott infected her:

Complainant: I’m still taking tests. I just got done with my three-month test, and I came back negative. But there are a lot more tests, I’m nowhere done. I’m nowhere in the clear. . . . I just got done with my three-month test and I have a six-month test and I have a year test and a two-year

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test. . . . I think I even have a fi ve-year test if the two-year test comes back negative.

Prosecutor: Okay. At any point can they say defi nitively that you do not have it?

Complainant: I mean, there’s never any time because people have showed up like ten, twelve, fi fteen years later with it.61

She concluded her testimony by imploring Judge Blackburn to hand down the maximum sentence: “Right now my tests have come back negative, but that’s not saying that they’re always going to come back negative. And three years is not worth the value of a life.”62 The prose- cutor parroted the woman’s testimony, arguing that the woman’s anxi- ety should render Scott ineligible for a diversion sentence that would have resulted in his record being expunged after a period of probation.63 “The best case scenario is a lifetime of uncertainty for her,” he argued.64 “She’s got to be worried about this and . . . got to tell everybody that she’s going to have a relationship with about it, . . . Three years is not suffi cient for that type of thing.”65 Ruling the crime “especially violent, shocking, reprehensible,” Judge Blackburn agreed with the prosecutor, denying Scott both diversion and probation, and sentencing him to the maximum—three years in prison—for “destroy[ing] somebody’s life.”66

It is important to note that the lingering possibility of infection did not always sway judges to apply sentence enhancements. In 1998, for example, Chester B., a thirty-one-year-old Black man, pleaded guilty in Hamilton County, Tennessee, to charges that he failed to tell a woman he was having sex with that he was HIV positive. Although she had tested negative six months after the encounter, a representative from Chattanooga CARES, an AIDS service organization, testifi ed that “we do advise people to continue testing for a full year.”67 The judge expressed concern that, although the woman “has been clear up to this point . . . we don’t know that she’s going to be permanently clear.”68 The judge even went on to compare the crime to murder: “It’s, I guess, analogous to putting a couple of bullets in a revolver and spinning the chamber and pointing at somebody’s head and pulling the trigger, because it’s a very signifi cant death, it does create a risk of death, not just serious bodily injury, but death.”69 Despite these explicitly stigma- tizing comments (comparing HIV to a bullet that kills instantly, people living with HIV to weapons, and the risk of transmission to the one in six of Russian roulette), the judge rejected applying the sentence enhancement factor for putting another person at a risk of death. How-

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ever, he did so because he believed that putting the victim at risk of death is “part of the underlying off ense”—thus, applying the aggravat- ing factor would be “double-dipping.”70 Although the judge did not apply that particular sentence enhancement factor, he did deny Chester probation because he believed the HIV exposure law needed “teeth” to work.71 He sentenced Chester to four years in prison.

In both Michigan and Tennessee courts, one way that prosecutors and judges frequently made sense of the criminal cases before them was to compare HIV to a lethal weapon. In Chester’s case, the judge was merely ad-libbing in front the courtroom, presumably in order to shame the defendant and communicate the threat he saw in the defendant— similar to the judge in Brenda’s case remarking that she was “carrying a deadly weapon.” But in some cases, that metaphor became material during sentencing. Valerie J., a fi fty-four-year-old heterosexual White woman, was convicted in both Clare and Isabella Counties, Michigan, in 2010 for not disclosing her status to the same male partner. In one of those counties, the judge and prosecutor debated whether they should score the off ense variable marked for “aggravated use of a weapon” at 20 points, defi ned as “the victim was subjected or exposed to a harmful biological substance, harmful biological device”:72

Judge: Any comment, [prosecutor], on OV two? That’s like the use of a weapon . . . . Do you think it fi ts?

Prosecutor: I looked at that and I think it does. I looked up the defi nition of the harmful biological device. . . . Yeah, it says it means a bacteria, virus or other micro-organism or toxic substance derived from or produced from an organism that can be used to cause death, injury or disease in humans, animals or plants. So I do think that that fi ts.73

The question echoes a controversial case that played out earlier that same year in which an HIV-positive Michigan man in Macomb County was charged under a law intended to combat bioterrorism after he bit a neighbor.74 Indeed, Valerie’s defense attorney specifi cally cited the judge’s ruling in the Macomb County case, which dismissed the bioterrorism charge on the grounds that being HIV positive in itself does not consti- tute the unlawful manufacture or possession of a harmful biological sub- stance.75 The Clare County prosecutor countered, “If we want to talk about aggravated use, the fact that she continued to have sexual rela- tions . . . each time, placing him in risk of loss of his life, I think it’s an appropriate scoring.”76 While he noted his respect for his Macomb County colleague’s opinion, Clare County judge Thomas Evans agreed

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with the prosecutor and ruled that “the bodily fl uids; specifi cally, the vaginal fl uids of an HIV positive woman do contain a potentially harm- ful biological substance and, therefore, the Court does fi nd the award of the points is appropriate.” The judge in Isabella County agreed. Valerie was sentenced to eleven months in jail in Isabella County and seventeen to forty-eight months in prison in Clare County.

These cases reveal how crime victims and prosecutors can infl uence the way that judges utilize the various sentencing levers at their dis- posal. In Antonio’s case, the victim’s erroneous claim that she must wait ten years to defi nitively know whether he infected her with HIV appears to have directly infl uenced the ten-year probation term handed down by the judge. In Scott’s and Chester’s cases, judges relied on the victims’ potential infection—at least in part—as a rationale for denying them probation. In Valerie’s case, the prosecutor’s argument that HIV should be considered a weapon increased her presumptive sentence. In the end, however, these cases reveal the discretionary power of judges in HIV exposure and nondisclosure cases to interpret technical matters that can directly infl uence sentencing.

“that’s not in the statute”: punishing the illusion of harm

Billy T., a forty-one-year-old Black man, was convicted in Washtenaw County, Michigan, in 2001 of not disclosing his HIV status to a woman with whom he had sex after they had smoked crack together one evening. The complainant initially told the police that she was raped— “the victim of a carjacking, and a kidnaping by two unknown Black men.”77 However, she later admitted that she had fabricated the story and that she had, in fact, gone willingly to the defendant’s house seeking drugs and sex. Billy admitted to having sex without telling the woman of his HIV status, but he said that he believed he had abided by the law because he used a condom. Despite serious inconsistencies in the wom- an’s account, Billy pleaded guilty to both criminal sexual conduct charges and a felony HIV nondisclosure charge.

At sentencing, the prosecutor argued for Billy to be sentenced at the top end of the guidelines: twenty-eight months. His defense attorney argued that Billy should be treated with leniency because he took pre- cautions to avoid transmitting the virus. To make this case, he repeat- edly tried to distinguish Billy’s case from a more egregious, hypothetical case: “He wasn’t just some predatory crack-head out there doing what-

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ever it was that he felt and that—to hell with the consequences.” Billy not only used a condom, but his viral load was undetectable; he was not “in full-blown AIDS status and going about knowingly infecting peo- ple.”78 The prosecutor disagreed, arguing that risk is irrelevant under Michigan law:

The fact that the argument is being made that [the defendant] thought that he was adequately protecting the Complainant, because he was wearing a condom. Well, that’s not in the statute. It doesn’t say if you wear a condom it’s only a misdemeanor or—or anything like that.79

The judge came close to acknowledging that the risk of transmission might matter to the case, but only in order to dismiss defense claims that Billy’s use of a condom made him less blameworthy: “While that might make—make some sense, the risk is so overwhelming in any regard. . . . You don’t need a statute to tell you that this is behavior which is just absolutely reprehensible.”80 Arguing that Billy “did manip- ulate and take advantage of the victim,” the judge agreed with the pros- ecutor’s recommendation and sentenced Billy to twenty-eight to sev- enty-two months in prison.81

The scientifi c literature available at the time, however, showed that the risk in Billy’s case was far from “overwhelming.” One widely cited study published in 1999, for example, estimated condoms to be 87 per- cent eff ective at preventing heterosexual HIV transmission.82 Another widely cited study published in 1998 estimated the per-incidence risk of male-to-female vaginal transmission without a condom to be roughly 1 in 1,000.83 Thus, had the judge consulted the scientifi c literature avail- able at the time, he would have discovered that contemporary scientists estimated the theoretical risk of male-to-female HIV transmission dur- ing condom-protected vaginal intercourse to be 1 in 7,500. Today, more recent studies have demonstrated that Billy’s undetectable viral load would have even further reduced the risk of transmission. Even using the conservative estimate that HIV treatment reduces the risk of hetero- sexual transmission by 96 percent, one could estimate the risk of trans- mission in Billy’s case to be roughly 1 in 190,000—a risk so low as to be negligible. Given even the evidence available to the sentencing judge in 2001, describing a 1 in 7,500 risk of transmission as “overwhelm- ing” appears far-fetched.

While there were many cases in which the level of risk was arguably small to negligible, some might contend that any level of risk is suffi - cient grounds for prosecution. The most persuasive examples of the

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illusion of harm punished under HIV disclosure and exposure laws would be cases in which the complainant was exposed to no risk at all. Such is the case against Melissa G., a twenty-three-year-old White woman arrested in Cass County, Michigan, in 2009 after police raided the strip club where she was employed. The prosecutor justifi ed the raid by describing the club as a “dangerous common nuisance due to ongo- ing drug activity, prostitution and repeated acts of lewd behavior.”84 Initially charging Melissa with prostitution and drug-related off enses, the prosecutor tacked on felony HIV disclosure charges after it was discovered that she was HIV positive. In order to minimize time spent in jail, Melissa accepted a plea deal. During an otherwise routine plea hearing, the detective testifi ed as to what allegedly transpired between Melissa and her client, a confi dential informant:

Prosecutor: Let me focus you particularly on a situation involving a pene- tration with his nose or nasal area of his face.

Detective: He would pay her twenty dollars a song for a lap dance, and on this occasion she was topless, she began dancing, started grinding on him, trying to arouse his penis. At one point she exposed her vagina area to him and placed it on the tip of his nose and began grinding on his nose with her vagina.

Prosecutor: Did the confi dential informant indicate that his nose actually went inside or penetrated her vaginal area?

Detective: Yes, it did.85

There are many conceivable pathways for HIV to be transmitted during intimate contact; nasal-vaginal penetration is not among them. Yet at sentencing, the prosecutor alleged that Melissa’s actions “clearly threat- ened the health and safety of specifi c individuals as well as the general public. The disease she carried is terminal.”86 Judge Michael E. Dodge sentenced Melissa to fi ve months in jail and she will be labeled a felon for the rest of her life.

In Tennessee, spitting and biting prosecutions continued well into the study period. Although the majority of these cases (fi ve out of seven) involved alleged altercations between defendants and police offi cers, this was not always the case. In July 2010, David S. attempted suicide. David, a thirty-six-year-old White gay man, was found in a “bathtub full of blood” and taken to a local hospital for treatment and monitoring.87 His same-sex life partner came to visit him in the hospital, and an argument broke out. A hospital attendant demanded that David’s life partner leave, at which point David allegedly became very angry and pushed the attend- ant into a wall. (Although the court records do not make clear the basis

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for the argument, there are numerous accounts during this period of hos- pitals denying same-sex partners access to their lovers’ hospital rooms.88) When the attendant then grabbed David to defend himself, David bit the attendant on the forearm. Hospital staff called the police, who arrived at the emergency room just after midnight that evening; David was subse- quently charged under Tennessee’s felony HIV exposure law.89

At sentencing, his publicly appointed defense attorney stated that they entered a plea on the charge “because of the proof against my cli- ent, and quite frankly, because of his previous criminal history.”90 Dav- id’s criminal history that included assaulting a police offi cer and lewd and lascivious conduct—a charge that led to being registered in Tennes- see as a sex off ender. Despite the fact that Tennessee statute explicitly requires demonstrating a “signifi cant risk of transmission,” contesting the charges at trial could have resulted in much more severe penalties being imposed because of his criminal history. In this sense, David is like many defendants in the United States who enter pleas rather than contest their charges, even in cases where they do not believe themselves to be guilty. Poor defendants like David may do so because they cannot aff ord to post bail, meaning that they must remain in jail for months or even years as they await trial; a guilty plea can off er the prospect of a timelier release (albeit on probation and with a criminal record).91

In spite of David’s plea, the prosecutor argued that the judge should sentence David to prison, denying him probation because his suppos- edly impending death would make rehabilitation all but impossible: “There’s a lack of potential for rehabilitation due to the fact that this man has the sword of Damocles hanging over his head now.”92 When David took the stand, the prosecutor went so far as to allege that the defendant also exposed the victim to hepatitis and methicillin-resistant Staphylococcus aureus (MRSA). However, he seemed to have a shaky understanding of either disease or the defendant’s medical record:

Prosecutor: And did you also say that in addition to—you said you did not have the hepatitis, correct? . . . .

Defendant: No, sir, I was tested in 2005 and the test was negative.

Prosecutor: Negative, I’m sorry. . . . Okay. But you did have MRSA, is that correct?

Defendant: MRSA, sir, is an air-born virus almost like anthrax. It’s in hospi- tals, courtrooms, schoolrooms. It only aff ects people with a weakened immune system and the elderly.

Prosecutor: I understand, but it can be transmuted [sic] by bodily fl uid, too, can it not? And that’s another risk this man is facing as well, correct?

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Defendant: Whenever I was tested at [the hospital] I was treated for it with a drug called—uh . . .

Prosecutor: It’s basically a fl esh eating staph infection, isn’t it?

Defendant: I was treated and successfully. It dissipated at [the hospital].

As David pointed out to the prosecutor, MRSA is a common infection among the elderly and hospital patients. However, a study published in Annals of Internal Medicine in 2008 cited a series of cases involving HIV-positive gay men in U.S. urban centers.93 Gay men’s health advo- cates criticized media outlets who sensationalized the study’s fi ndings with headlines declaring that gay men were “spreading” a “fl esh-eating super bug.” Activists described such reports as stigmatizing because they implicitly blamed gay men for “spreading” the disease, because they overemphasized a rare presentation of the disease (necrotizing fasciitis), and because they failed to clearly communicate that MRSA is generally treatable.94 Although Tennessee law makes no mention of MRSA, the prosecutor’s rhetoric suggests he may have been nonetheless attempting to stain David’s case with the stigma of both HIV and MRSA.

Like the vast majority of cases brought under both Michigan and Tennessee law, no medical evidence was presented to link biting to a signifi cant risk of transmitting HIV as seemingly required under the law. Nonetheless, the judge viewed David as potentially homicidal, noting that “an intentional biting, under the circumstances, you know, I think this similar thing sometimes have been brought as attempted murder.”95 He measured the seriousness of the off ense, in part, by the anxiety infl icted on the bitten hospital attendant and by the possibility that, despite nearly a year having passed since the incident, he might yet become infected with HIV: “It’s an act of exposing someone to a very serious incurable condition, and certainly the fact that the victim . . . has been in a state of anxiety for a year already, and maybe will have to have some issues of anxiety for another several months.”96 Citing these concerns, the judge denied David probation and sentenced him to three years in prison.

Taken together, the convictions of Billy, Melissa, and David reveal the argument that HIV-specifi c criminal laws protect the public from harm to be false. Although extreme in their tragic absurdity, these cases reveal the contours of HIV criminalization in America: that a woman can be made into a felon for allowing a man’s nose to penetrate her, that a suicide patient can be imprisoned for biting a hospital attendant, and that heterosexual sex with a condom can be ruled an “overwhelming”

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risk. Underneath the illusion of harm lies a naked, uncomfortable truth: the punishable off ense in these cases is merely being HIV positive.

punishing hiv

Although prosecutors and judges routinely compared HIV to a death sen- tence and defendants to murderers, the research for this chapter uncovered only one death associated with a criminal case. William K., a fi fty-two- year-old White gay man, was convicted in Allegan County, Michigan, in 2004 after being accused of not disclosing his HIV status to a casual male sex partner before engaging in receptive anal intercourse. At sentencing, William told the court that he was unaware that the law existed and that he thought he was protecting his partner by using a condom. Unsympa- thetic, the judge suggested that William might have killed his partner.

Defendant: I had no idea that the law even existed, and I know that igno- rance is not a justifi cation of it but I did what I thought I was supposed to do. We did it safely and I thought that was the way it was supposed to be done

Judge: It never occurred to you that you might kill the man?

Defendant: I was recently diagnosed. I mean we practiced safe sex which is basically the only thing you can do.

Judge: Well, I guess if you knew what you had when you did this there’s always a huge risk that you could infect somebody with a horrible disease.97

As in so many of the proceedings brought under Michigan and Tennessee law, the judge introduced no evidence to support the claim that there was a “huge risk” to his partner—ignoring the contemporary research that he might have turned to in order to estimate the odds of transmission from a receptive to insertive anal sex partner while using a condom (roughly 1 in 12,820, using estimates published in 1999).98 Nonetheless, in August 2004, the judge sentenced him to twenty-four months’ probation.

Nearly a year later, William was charged with two counts of violating his probation. His alleged violation: “The fi rst would be Count 1, viola- tion of Term #3 in that the defendant failed to provide a truthful report to [his probation offi cer], specifi cally by lying about his attendance at treatment. Count 2, violation of Term 3.3 in that the defendant failed to attend his specifi ed treatment as directed.”99 In short, William was arrested for not seeing his therapist and for telling his probation offi cer that he had. While such a minor infraction might appear petty to those unfamiliar with the criminal justice system, technical violations such as

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William’s can result in a judge revoking the defendant’s probation and ordering incarceration.100 On August 5, 2005, William was arraigned on probation violation charges; he was nonresponsive when the judge asked him a question, and then later complained that he did not feel well and asked to sit throughout the proceedings.101 The prosecutor successfully argued for a “signifi cant bond” (set at $10,000) to keep William behind bars while he awaited a contested hearing on the charges.102

At the contested hearing, William represented himself (what’s known as pro se representation) and appeared ready to plead guilty to the sec- ond count, but he explained that he had trouble getting in touch with his provider—complicated by the fact that his preferred provider was mov- ing away: “It was hard for me to get a hold of him. And so would call and leave him messages and then not get returned phone calls back. . . . I didn’t even know he was leaving. Now I have to fi nd somebody else who is really good at what they do.” The judge appeared frustrated with William’s hedging on pleading guilty—telling him repeatedly that “I don’t care.” William, for his part, appeared confused as to what was happening and what his legal options were at the hearing:

Judge: Well, let’s put it this way [William]. Either you missed treatments that you were supposed to go to or you didn’t. You can either plead guilty or not guilty, I don’t care which way you go. I just need to have a defi ni- tive statement. . . .

Defendant: Why didn’t they check with him?

Judge: Look, I can’t answer you. I don’t know anything about it, period. I don’t know whether you went, whether you didn’t go, all I can either take your plea and you admit that you didn’t go or we have a hearing and I’ll decide if they have evidence that says you didn’t go. You’ve got your choice. What do you want to do?

Defendant: Can I change the hearing later or not?

Judge: No. If you have a hearing—you’re here today for a hearing. We’re either going to have a hearing or you’re going to enter a plea, one of the other. I don’t care which.

Defendant: Can I plea bargain something?

Judge: Talk to the prosecutor. Go ahead, talk to him. I don’t care. (italics added)103

After a repeated back and forth with the prosecutor, they failed to come to an agreement and William declared that he wished to contest the charges. Although he could have ordered a continuance to give William time to sort out his legal issues, the judge immediately opened the hear- ing and called William’s probation offi cer to the stand. After the prose-

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cutor briefl y questioned the offi cer, the judge then turned to William to present his defense.

Judge: [William], it’s your opportunity to present testimony or evidence. Do you have any testimony you want to present?

Defendant: I guess I’m just a little confused.

Judge: Well, you said you wanted a hearing, you weren’t going to plead, we’re having the hearing. You have testimony against you. The prosecu- tor has put his case in.

Defendant: The other—I’m sorry. The other gentleman told me that we would have a trial and do all that kind of stuff .

Judge: We are having a trial right now. This is the day set for your contested hearing.

Defendant: Well, he told me we would have it next month.

Judge: I don’t care what he told you. We’re not having it next month, we’re having it today. (italics added)

William continued by explaining that, while he did miss some sessions, he was sick and it was diffi cult to get a hold of his counselor. The judge promptly found William guilty of violating his probation: “Now I don’t know that you did so because you’re a mean, evil person, you probably were sick but it doesn’t matter, you violated the terms and conditions of your probation order so you’re guilty as charged.”104

Bond was continued at $10,000, leaving William incarcerated as he awaited his September 16, 2005, sentencing. William would not appear again in court, however; he died eleven days later, on August 29, just days before he was to be sentenced for not seeing his therapist.105 He was pronounced dead upon arrival at a regional hospital; the offi cial causes of death listed on his death certifi cate are cryptococcal meningi- tis (a fungal infection associated with untreated HIV) and “advanced AIDS/HIV.”106 Although a medical doctor might say that William died of AIDS-related complications, sociologically speaking, the legal pro- ceedings against him seem at the very least to be a complicating factor. Although the judge accused William of potentially killing his partner, it was William who would ultimately not survive the allegations.

• • •

William’s tragic case refl ects many of the critical problems faced by the poor when interacting with the American criminal justice system—par- ticularly how technical probation violations can create a vicious cycle of supervision and punishment. Unable to aff ord to hire a lawyer to

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represent him, William appeared to stumble through the probation vio- lation hearings, unaware of how they would unfold. But while Wil- liam’s case resembles many non-HIV related cases, his death reveals how HIV can compound these factors for people living with HIV. If the goal of probation was to rehabilitate William and promote his well- being, the system clearly failed.

More broadly speaking, William’s case reveals the bluntness of the law as a tool for managing social problems. William was ordered to see a health care provider—and for failing to do so, he faced being locked up. As studies on addiction have demonstrated, punishment is not an eff ective way to handle medical problems.107 Health care providers are encouraged to demonstrate compassion, not scorn.108 The courtroom is a place for punishment, the hospital a place for recuperation. The tools for one job appear not well-suited to accomplish the goals of another.

As this chapter demonstrates, in order to put HIV on trial in Ameri- can courtrooms, judges and prosecutors translate HIV from the lan- guage of medicine (risk, treatment) to the language of the law (harm, punishment). Judges and prosecutors conduct this translation through the language they use to discuss and interpret the cases. HIV is not a virus or a chronic disease, but a “deadly weapon.” Defendants are not merely people living with HIV; they are potential killers. These analo- gies assign blame and establish victimhood in a system that deals in prisons and handcuff s rather than hospitals and pills.

The language used in court by victims, prosecutors, and judges is not just meaningless banter: their implicitly and explicitly stigmatizing rhet- oric creates the illusion of harm in these cases, a veil under which pros- ecution and conviction seem the logical response to the defendant’s actions. The words used to describe and represent HIV (“a death sen- tence”), the risk of transmitting HIV (“Russian roulette”), and HIV- positive defendants (“carrier of death”) matter. That such highly stig- matizing and woefully ignorant views can shape the court’s decisions is inextricably tied to broader political and power struggles in American society. For example, that so many Americans are so ignorant of HIV is at least partially a result of impoverished sexual education standards in many states. It is also the product of a media landscape in which HIV is represented as a disease impacting the “4-H club”—thus mitigating the need for many Americans to better understand it. If all the people in the courtroom were required to discuss HIV in medically accurate terms, it would be far more diffi cult to build a criminal case against many of the defendants.

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The translation achieved through this stigmatizing discourse from “sickness” to “badness” is what sociologists would describe as a “moral passage.”109 It is not unique to HIV; other conditions, such as excessive drinking, have been relabeled as disease and in some contexts as crime (when pregnant, for example).110 This transformation from disease to crime explains why medical evidence was largely irrelevant in trial courts. Indeed, in only one criminal case did a prosecutor or judge describe HIV in medically accurate terms as a manageable or chronic disease.111 This refl ects the fundamentally diff erent ways that prosecu- tors and doctors make sense of the social world: whereas the prosecu- tors assign blame, promote justice, and impose due punishment, doc- tors are supposed to remain neutral, promote health, and off er treatment. What might seem like compelling evidence to a doctor (viral load, con- dom use, and so on) may seem entirely irrelevant to a prosecutor—and vice versa.

To better explain the implications of this moral passage, the next chapter explores which communities are being prosecuted and con- victed under HIV-specifi c criminal laws. Although activists charge that the enforcement of these laws follows discriminatory patterns based on race and sexuality, the data tell a more complicated story.

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During the summer of 2014, an explosive arrest was splashed across Midwestern newspapers: Michael J., then twenty-two years old, stood accused of exposing six male partners to HIV without telling them he was HIV positive; two allegedly contracted the disease. A young Black man in a conservative county in Missouri, Michael and the accusations against him quickly became a fl ashpoint for racial and sexual politics. The fact that Michael went by the highly racialized name “Tiger Man- dingo” on gay dating social networking applications made the case immediate fodder for virulently racist White supremacy websites that bashed both Michael and his partners for engaging in “bestiality.”1 News media frequently referred to that name while featuring sexually charged pictures of Michael downloaded from social media. A critic of such coverage lamented, “Arrested and charged in an overwhelmingly white community where anti-gay beliefs are widespread, the gay, black ‘Tiger’ never stood a chance.”2

Activists charged that Michael’s case demonstrated how HIV exposure and disclosure laws disproportionately impacted gay Black men. Eighty- nine Black gay men—including writers, activists, and academics—penned an open letter to Michael to express their solidarity with him in the days before his trial was set to begin in May 2015. In the letter, the authors pointed out that “legally requiring disclosure privileges the lives of White people not living with HIV over Black people who are living with HIV. These laws feed into stereotypes that assume Black gay men are irrespon-

chapter 6

Victim Impact HIV Threat and the Disparate Impact of HIV Criminalization

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Victim Impact | 159

sible and hypersexual.”3 The fact that Michael was set to be tried just ten miles away from a town that had come to symbolize racial injustice in America, Ferguson, only exacerbated the sense among activists that Michael was the target of a racist and homophobic witch hunt.4

Critics noted that of the fi fty-one potential jurors, “about half” raised their hand when asked whether they believed being gay was a choice.5 Moreover, court transcripts reveal that seventeen potential jurors stated in court that they believed being gay was a sin.6 Although only one of those seventeen was ultimately selected, the prevalence of homophobic attitudes confi rmed the belief of some critics that the case was stacked against the defendant—especially because all but one of the selected jury panel was White.

At trial, charges of racism ratcheted up as the prosecutor built a case that seemed to reinforce racist, predatory images of Black male sexual- ity.7 For example, despite the fact that Missouri’s law is extremely broadly written so as to punish a wide range of HIV exposures regard- less of risk, the prosecutor repeatedly raised allegations that the defend- ant refused to use condoms because his penis was too large. In his open- ing statements, the prosecutor stated: “He had asked the defendant to wear a condom. . . . The defendant refused, claiming, falsely, that they don’t make condoms in his size and so they had unprotected inter- course.”8 Regarding another count involving a diff erent complaining witness, the prosecutor recounted a similar story: “He provided [Michael] a condom and said here, put this on. The defendant complained it was too tight and then claimed it broke and took it off .”9 He went on to describe especially lurid details about the encounters, including some that bore no relationship to HIV or its transmission risk, such as “dip- ping that HIV mixed semen in [the complainant’s] face.”10

In some ways, Michael’s case resembles those reviewed in the previ- ous chapter. For example, complainants reported testing an extraordi- nary, unnecessary number of times to confi rm their HIV-negative status, while HIV was a framed as a “deadly” disease (although the defense countered this characterization). What is exceptional about Michael’s case, however, is not the role that HIV fi gured in his prosecution but the way that race loomed over his trial. Race provided a lens through which observers interpreted the case’s particularities, leading many to con- clude his conviction was a foregone conclusion under a legal system that overtly discriminated against Black gay men.

Michael’s case, of course, was not the fi rst HIV-related prosecution to be clouded by accusations of racism. Perhaps the most widely

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160 | The Criminalization of Sickness

reported such case involved a nineteen-year-old New York defendant, Nushawn W., accused in 1996 of infecting nearly a dozen young women—many of them White and some of them underage (described in chapter 2). As New York does not have an HIV-specifi c criminal law, Nushawn was tried and convicted under criminal sexual conduct laws. A book examining the media spectacle surrounding his case, Notorious H.I.V., reveals how the politics of race, class, and sexuality fomented the public outcry.11

Years later, as Nushawn was approaching his expected release from prison in 2008, New York correctional offi cials used a state law enacted in 2007, the Sex Off ender Management and Treatment Act, to justify keeping Nushawn behind bars indefi nitely under a program known as “civil confi nement” (briefl y described in chapter 1). Although keeping criminals behind bars long after their sentences have ended would seem in confl ict with constitutional protections against double jeopardy, the Supreme Court ruled in Kansas v. Hendricks (1997) that indefi nitely detaining sex off enders was not punishment at all; rather, “civil confi ne- ment” amounted to a kind of “treatment” and thus was constitution- ally sound.12 Nushawn was still behind bars at time of publication, after a New York State Court of Appeals decision in 2016 rejected his bid for freedom.13

Nushawn’s ongoing legal battle and Michael’s sentence to thirty years in prison would appear to reinforce critics’ arguments that states aggressively fi ght to keep young HIV-positive Black men behind bars for the majority of their lives. This chapter attempts to bring science to bear on these claims of racial injustice by evaluating evidence of discrimina- tion under state HIV exposure and disclosure laws. Specifi cally, this chapter analyzes an original dataset of convictions under six state HIV- specifi c laws to address several questions. First, are Black men—gay or straight—disproportionately convicted under HIV exposure and disclo- sure laws?14 What factors might be driving such a disparity, if it exists? Second, when Black men are convicted under these laws, are the sen- tences handed down by judges more severe than the sentences imposed on White men? What can social science tell us about which factors might shape any observed sentencing disparities?

This chapter wrestles with these questions in order to off er a specifi c diagnosis for how race, gender, and sexuality shape the application of HIV-specifi c criminal laws. With a more precise account of how the law is enforced against diff erent communities, policy experts might be better positioned to evaluate diff erent reform proposals—and activists might

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Victim Impact | 161

better lobby for them. The chapter begins with an analysis of the demo- graphic characteristics of defendants convicted under HIV disclosure and exposure laws. Then, the chapter turns to sentencing data to exam- ine whether there are disparities in how particular groups are punished under the law.

evidence of discrimination? understanding form, basis, and context

Over the past decade, stark, depressing statistics from social research have galvanized some Americans to consider the devastating impact of mass incarceration on communities of color. One 2004 paper, for exam- ple, found that nearly 60 percent of Black men who were born between 1965 and 1969 and who dropped out of high school went to prison by 1999—compared to just 11 percent of their White male peers.15 Advo- cates for change have harnessed these fi gures to argue that mass incar- ceration operates as a new form of Jim Crow, maintaining racial ine- quality through imprisonment.16 In response, social scientists have sought to identify discriminatory policies and practices that might be to blame for these dramatic diff erences between Blacks and Whites in America. This section introduces three key ways to categorize discrimi- nation that can help sharpen our understanding: the form of discrimina- tion, the basis for discrimination, and the context for discrimination.

Form: To help researchers and policy makers make sense of discrim- ination under the law, scholars sometimes distinguish between dispa- rate-treatment and disparate-impact discrimination.17 Though this dis- tinction is mostly invoked in civil law proceedings (since discrimination is generally a matter for civil rather than criminal courts in the United States), there are parallels under the criminal law. Disparate treatment is what most Americans probably think of when they hear the term discrimination; it refers to practices that explicitly treat groups diff er- ently. A recent example of disparate-treatment discrimination under the criminal law is New York City’s controversial stop-and-frisk program under which police stopped Black and Latino youth more frequently than White youth (studies show that African Americans were stopped 23 percent more often than Whites under the program).18

Disparate-impact discrimination, on the other hand, is due to practices that are not explicitly related to race, gender, or some other legally pro- tected identity but nonetheless result in a disparate outcome. Perhaps among the most notorious disparate-impact criminal policies were the

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162 | The Criminalization of Sickness

1986 federal sentencing guidelines for crack cocaine versus powdered cocaine, resulting in a 100:1 sentencing disparity.19 The sentencing guide- lines made no mention of the race of the person arrested for possessing either drug, nor were judges accused of treating Black defendants diff er- ently under those guidelines. Instead, the discrimination resulted from racially patterned drug use: because African Americans are more likely to be arrested and convicted for possessing crack cocaine than its more expensive, powdered cousin, the more extreme penalties for crack cocaine were more frequently imposed against Black men—a disparate impact.

Basis: In their quest to track down evidence of discrimination under the law, scholars have paid close attention to the demographic characteristics of defendants—particularly when it comes to sentencing. For example, scholars have examined whether older or younger defendants are sen- tenced more harshly (the evidence suggests no diff erence) as well as whether their gender might play a role (the evidence suggests women are sentenced more leniently than men).20 Studies have also put these two var- iables together with race to analyze whether there might be what social scientists call an “interaction” between them; although age alone is not associated with harsher sentencing, the evidence suggests that young Black and Latino men are sentenced more harshly than young White men.21

Although much less common, some studies have also examined whether the characteristics of crime victims—rather than just defend- ants—might be associated with disparate criminal justice outcomes. The most convincing evidence to suggest that victim characteristics might play a role in shaping the application of law comes from studies that examine death penalty cases. One famous study found that Black defendants accused of killing White victims were more likely to receive the death penalty than were Black defendants accused of killing Black victims.22 These fi ndings reveal that who the crime victim is might play just as important a role as who the defendant is in determining how courts punish criminal defendants.

Context: Finally, scholars have also examined the context for dis- crimination—specifi cally, the various points along the path from arrest to conviction to sentencing and beyond at which a defendant might experience discrimination involving distinct authorities. These studies recognize that the law is not a machine that processes people through the criminal justice system objectively; rather, the law in practice is the sum of a range of human decisions that can be highly subjective. To understand how various human decisions impact how the law is enforced, social scientists look at patterns in police arrests, prosecuto-

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rial decisions in charging defendants, jury decisions in convicting, and judicial decisions in sentencing. For clarity’s sake, here are examples of four scholarly fi ndings of discrimination from each of these categories:

1. One study found that police policies result in more African Ameri- cans being arrested for drug use in Seattle.23

2. One study found that prosecutors choose to upgrade charges against Black homicide defendants more often than other defend- ants, especially in cases involving White crime victims.24

3. One study found that mock jurors were more likely to convict hypothetical Black defendants of rape in cases where their victim was White.25

4. One study found that judges more frequently depart from the guidelines to impose harsher sentences on Blacks, males, and off enders with low levels of education.26

These studies represent the tip of the iceberg of the social science research into discrimination. Their presentation here highlights how social scientists have thought about what evidence of discrimination looks like under the law.

A precise diagnosis of the form, basis, and context of discrimination is necessary in order to off er the most eff ective prescription for reform. The title of the chapter, “Victim Impact,” reveals the focus of this anal- ysis: how and why the victim characteristics in HIV exposure and non- disclosure cases shape the application of the law. However, the analysis that follows also considers other variables. In order to make sense of these data, however, it is important to look at how HIV exposure and nondisclosure cases come to court in the fi rst place.

naming, blaming, complaining: understanding the origins of hiv exposure and disclosure cases

Prosecutor: And what did you do in your room?

Complainant: I went around the room looking, you know, for any evidence of medications.

Prosecutor: Did you fi nd any?

Complainant: Yes.

Prosecutor: Do you remember what the medications were or whose name was on the medications?

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Complainant: Yes.

Prosecutor: Whose medications were they?

Complainant: Franklin [C.’s].27

When Franklin told the complainant, his roommate, that he was HIV positive the day after they had consensual sex, his roommate wondered if it was some kind of “sick joke.”28 So when Franklin left for work later that morning, the complainant searched the house looking for medications for HIV in their shared residence. He testifi ed that he found several prescrip- tion bottles, wrote down the names of the drugs, and went to the closest pharmacy to confi rm their purpose. Upon confi rming their purpose, he testifi ed that he felt “really nauseous . . . like I was just going to like die.”29

He immediately walked to a friend’s house nearby and asked her to drive him to the hospital, where he was admitted to the emergency room. At the ER, he testifi ed that the health care providers “started to take like a sample of—you know, like of my hair, looked at my rectum, and blood work.”30 Although the sex was consensual, ER doctors per- formed a rape kit exam on the defendant; they also started him on a prescription of post-exposure prophylaxis, a treatment regimen that can reduce the risk of contracting the disease if begun within seventy- two hours after an exposure. Two social workers from a local rape crisis center quickly arrived, who ultimately brought the complainant to the rape crisis center, where he would stay for several weeks. He went to the police station the next morning to fi le a complaint.

Franklin’s case is unusual in some respects. For example, as discussed in chapter 5, his defense team (unsuccessfully) argued that his undetectable viral load should be considered as a mitigating factor. However, his case is illustrative in a chapter on discrimination because it reveals the compli- cated set of factors that can infl uence someone to decide to fi le a criminal complaint with police. As the witness’s testimony reveals, medical provid- ers responded to his case as if it were sexual assault, doctors performed a rape kit exam, and representatives from a local rape crisis center showed up to support him. These interventions may well have helped to mold the complainant’s perspective of the events that transpired.

Sociolegal scholars refer to this transformative process from an unre- alized injury to the decision to make a formal legal claim as “naming, blaming, and claiming.”31 While sociolegal scholars theorized this trans- formation in relation to tort law disputes, this process is nonetheless relevant to criminal HIV exposure and disclosure cases because of the unusual characteristic of the off ense: potential complainants do not gen-

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erally realize a crime has been committed until long after the sexual encounter is fi nished. Complainants in HIV exposure cases must fi rst view themselves as victims of an injurious off ense (“naming”); they then must place explicit blame for that off ense on their sexual partner (“blam- ing”). Finally, they must decide to report their partners to law enforce- ment by fi ling a criminal complaint. Although sociolegal scholars study- ing civil law disputes refer to this step as “claiming,” this chapter calls it “complaining” under the criminal law to refer to the formal transforma- tion of the individual fi ling the complaint into a criminal complainant.

It is not always possible to know all the factors that shaped every step in this transformation into complainant. However, because of the nature of these cases, a potential complainant’s discovery that a prior sexual partner is HIV positive typically prompts the naming step. Franklin’s case reveals how prescription drug medications can play an important role in this step. Although Franklin disclosed his status earlier that morning, the prescription drug bottle played the role of cold, hard evidence that set in motion a process that ultimately led to his partner fi ling criminal charges.

There are exceptions to this description of naming, most notably in cases involving sexual assault and prostitution; in them, the state gener- ally fi les charges unrelated to HIV and later tacks on HIV-related charges when it is discovered that the defendant is HIV positive. How- ever, most cases are like Franklin’s in that the complainant initiated the investigation into the defendant. In the 103 convictions analyzed in chapter 5 (representing the majority of convictions under Michigan’s HIV disclosure law and Tennessee’s HIV exposure law between 1992 and 2010), the catalyst that prompted the prosecutor to fi le charges was evident in fi fty-eight cases:

1. in thirty cases, an individual discovered that a prior sexual partner was HIV positive and then fi led a complaint with law enforcement;

2. in twenty-two cases, police discovered that a defendant accused of a diff erent crime or already arrested was HIV positive (thirteen involved sexual assault; six involved a defendant who spit at or bit a police offi cer; three involved prostitution-related charges32);

3. in four cases, police had initiated investigation into the defendant;

4. in one case, a hospital attendant who had been bitten by an HIV-positive patient fi led a complaint with law enforcement;

5. in one case, the health department had asked the prosecutor’s offi ce to investigate a defendant;

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Thus, state authorities fi led the original criminal complaint in twenty- seven cases. Conversely, in thirty-one of the cases analyzed (the thirty involving prior sexual partners and the one case involving a hospital staff member), the complainant’s decision to report the defendant to law enforcement sparked the investigation that ultimately led to the prose- cutor fi ling criminal charges.

Although it is not clear from court records or newspaper reports whether the state or the complainant initially pursued charges in the remaining forty-four cases, it is highly likely that complainants initiated the vast majority of these proceedings. Cases related to prostitution and sexual assault (which constitute the majority of state-initiated cases) can always be identifi ed because of the additional charges fi led along- side HIV exposure and disclosure charges—cases that nearly invariably begin with a police investigation into other, non-HIV-related charges. Consequently, state-initiated cases are usually easy to identify. By com- parison, in complainant-initiated cases, court records may not mention the case’s origins.

In the thirty cases in which a complainant reported a prior sexual partner to law enforcement after discovering that the partner was HIV positive, complainants learned of the defendant’s status from six types of sources:

1. in twelve cases, a third party informed the complainant of the defendant’s HIV-positive status;

2. in fi ve cases, the complainant found medication for treating HIV belonging to the defendant or other medical records;

3. in fi ve cases, the defendant told the complainant after sexual intercourse had taken place;

4. in four cases, the complainant learned of the defendant’s HIV status from a television or news report;

5. in two cases, the health department informed the complainant of the defendant’s HIV status;

6. in two cases, the complainant deduced the defendant’s HIV status after testing positive for HIV.

As this analysis reveals, complainants most commonly fi nd out that the defendant is HIV positive through a third party—such as an ex-girl- friend, a neighbor, or a friend. (It is worth noting that revealing another person’s HIV status is a criminal off ense in Michigan.33 Nonetheless,

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Victim Impact | 167

records did not suggest that charges were ever fi led against the third parties in these cases).

This section has detailed the importance of context when considering discrimination under the law. These fi ndings suggest that the “com- plaining” moment when a potential complainant decides whether to call the police plays a critical role in shaping the application of HIV exposure and disclosure laws. As the analysis in the following sections reveals, the evidence suggests that complainants in HIV exposure and disclosure cases infl uence the law’s application in surprising ways.

trends in conviction under state hiv exposure and disclosure laws, 1992–2015

This chapter analyzes an original dataset of 431 convictions in six states: Arkansas, Florida, Louisiana, Michigan, Missouri, and Tennes- see between 1992 and 2015.34 Because each state law was enacted at diff erent points in time and data were not available throughout the entire period studied for every state, the data represent 122 state-years. Figure 16 illustrates both the actual number and the moving three-year average of convictions in the six states combined. Excepting Michigan, the trend is consistent: the number of convictions rises over time.

This upward trend is consistent with concurrent rise in HIV preva- lence in the United States during the same period. In mid-1996, for example, the Centers for Disease Control (CDC) estimated that there were over 200,000 people living with HIV in the United States.35 Because of new treatments introduced that year, people living with HIV began living much longer lives; consequently, the number of people liv- ing with HIV climbed year over year as new individuals were diagnosed with the disease. At the end of 2013 (the latest year such fi gures were available at time of publication), the CDC estimated that over 1.2 mil- lion Americans were living with HIV.36 Although the number of convic- tions continued to climb over time in most states, the sixfold increase in people living with HIV outpaced that growth; the annual number of convictions roughly tripled during the same period.

Table 3 depicts the demographic characteristics of convicted defend- ants in two groups. In the second column, the table presents descriptive statistics of the entire six-state population. Because partner gender data were not available for cases in Arkansas, Florida, and Louisiana, the table presents the data for only those three states in the third column.

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These data reveal a surprising trend: while many assume that most defendants in HIV exposure and disclosure cases would be gay men, courts convict heterosexual men in far greater numbers. Overall, the vast majority of convicted defendants in all six states are men (76 per- cent); the majority of those convicted men are Black (62 percent of male defendants and 48 percent of defendants overall); and, in the three states in column 3, the majority of the Black male defendants were accused of not disclosing by female complainants (72 percent of Black male defendants). Heterosexual Black male defendants constitute over one-third of the 206 convictions involving an allegation of nondisclo- sure before sex (41 percent)—more than straight and gay White men combined. Including straight White male defendants (17 percent) and other heterosexual defendants (1 percent), heterosexual male defend- ants make up more than 50 percent of convicted defendants—more than twice the number of gay male defendants.

These raw fi gures are suggestive of several possible trends. For exam- ple, it would appear that heterosexuals are most frequently convicted under HIV exposure and disclosure laws. But of course, most Ameri- cans are heterosexual; does that diff erence actually represent a dispar- ity? To evaluate this possibility, it is necessary to compare these fi gures

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Actual Moving 3-year average

figure 16. Total number and moving average of HIV convictions in six states (AR, FL, LA, MI, MO, TN), by year. Source: Trevor Hoppe.

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table 3 descriptive statistics of the population of convicted defendants

Six states

Three states Partner gender available

States:

Total number of convictions:

Arkansas, Florida, Louisiana, Michigan, Missouri, Tennessee

431

Michigan, Missouri, Tennessee

231 (206)a

Defendant gender Frequency Percent Frequency Percent

Male 328 76% 196 85% Female 103 24% 35 15%

Defendant race

White 170 40% 96 42% Black 245 58% 130 56% Other 10 2% 5 2%

Complainant gender (men)

MSW – – 121 72% MSM – – 47 28%

Race, gender

White men 112 26% 74 32% White women 58 14% 22 10% Black men 202 48% 118 51% Black women 43 10% 12 5% Other men 9 2% 4 2% Other women 1 0% 1 0%

Race, complainant gender (men)

White MSW – – 34 20% White MSM – – 25 15% Black MSW – – 85 51% Black MSM – – 21 13% Other MSW – – 2 1% Other MSM – – 1 1%

note: Numbers presented are rounded to the nearest whole number for ease of review. a The analyses including partner gender data are based on 206 convictions in three states. That number does not equal the total number of convictions in those states because it includes only convictions involving sexual contact and convictions for which partner gender data was available.

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170 | The Criminalization of Sickness

against the HIV-positive population at large. For example, more than half of women incarcerated in the United States are White, and roughly 30 percent are Black.37 One could read these data and conclude that White women are more likely to be incarcerated in the United States. However, this would ignore the fact that there are far more White women in the United States than Black women. When accounting for population size, studies reveal that Black women are incarcerated at rates three times greater than White women.38 Taking into account the population size is critical to evaluating whether discrimination might exist under the law. In the next section, the raw fi gures presented here are compared to the demographic characteristics of individuals diag- nosed as HIV positive during the same time period.

rates of conviction under state hiv exposure and disclosure laws, 1992–2015

To estimate and compare the rate of conviction by race, gender, and sexuality, this section compares the demographic characteristics of con- victed defendants against new HIV diagnoses reported by each state health department during the same period. Health department data were not available for Arkansas, so it is excluded from this analysis. As previously mentioned, partner gender data were not available for cases in Florida and Louisiana, so they are excluded from the analyses that rely on those data. Consequently, this section analyzes data from 387 convictions reported in Florida, Louisiana, Michigan, Missouri, and Tennessee between 1992 and 2015.

In the previous section, raw fi gures reveal that heterosexual men, especially heterosexual Black men, are the most common defendants in HIV exposure and nondisclosure criminal cases. Does this trend reveal a disparity, or is it merely a refl ection of the number of heterosexual men who are HIV positive? As it turns out, while most men in the United States are heterosexual, most HIV-positive men are gay men and other men who have sex with men (MSM). Of the men diagnosed as HIV positive during the study period in the three states for which part- ner gender was available, public health records reveal that just 24 per- cent were heterosexual. Thus, if criminal charges were fi led randomly against HIV-positive defendants, we would expect to fi nd that 24 per- cent of male defendants would be heterosexual. In fact, nearly the opposite is true: straight men make up the vast majority (72 percent) of male convictions.

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Victim Impact | 171

This complete reversal of epidemiological trends is refl ected in the rates per 10,000 HIV diagnoses presented in table 4. In the three states for which complainant gender data were available, heterosexual men are convicted at far greater rates than their gay counterparts. Overall, HIV-positive heterosexual men were convicted at rates seven times greater than gay men. In the state with the fewest number of HIV infec- tions, Missouri, the diff erence between straight and gay male defend- ants is enormous: straight male defendants are convicted at a rate of 1,353 per 10,000 HIV diagnoses—compared to just 23 per 10,000 diagnoses for gay men. In Missouri, this study estimates that HIV-posi- tive heterosexual men are nearly 59 times more likely to be convicted under that state’s HIV exposure law than gay men are.

As table 4 demonstrates, Missouri is in its own class. The state has by far the fewest HIV diagnoses during the study period (estimated at 10,680); yet, it has the largest number of convictions and the highest overall rate of conviction (98 per 10,000 HIV diagnoses—more than Florida, Louisiana, Michigan, and Tennessee combined). These fi ndings reveal that nearly all HIV-positive people—straight, gay, Black, or White—are at far greater risk of conviction if they live in Missouri than if they live in any of the other three states analyzed in this section. In nearly every demographic category, the estimated rates of conviction observed are greatest in Missouri (with the exception of White women and White gay men).

The previous section reported that heterosexual Black men were the most common defendant in HIV exposure and disclosure cases, repre- senting more than a third of all cases. Does this mean that they, too, were convicted at greater rates? If we take a cross-section by race alone and compare Black and White defendants, some diff erences emerge, but they are inconsistent across states and thus not conclusive. If we add gender to the analysis, some diff erences between Black men and White men appear, but they again vary across states. When sexuality is added as a third dimension for Michigan, Missouri, and Tennessee, the evi- dence does not suggest that Black straight men are at a higher risk of conviction than White straight men are.

How could this be, if Black straight men constitute nearly a third of all defendants? The answer lies in the public health fi gures on HIV diag- noses: although heterosexual men overall constitute only a quarter of HIV diagnoses, Black heterosexual men make up nearly 70 percent of all straight male cases. Consequently, accounting for these population sizes suggests that, in fact, White straight men are at a higher risk of

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table 4 estimated rates of conviction per 10,000 hiv-positive diagnoses in five states

Florida Louisiana Michigan Missouria Tennessee TOTAL

Time period 1996–2015 1992–2013 1992–2010 1996–2015 1995–2013 1992–2015 Number of convictions 98 58 58 105 68 387 (206)d

Number of HIV diagnoses 162,590b 27,627 17,441 10,680c 18,818 237,156 Convictions per 10,000 diagnoses 6 21 33 98 36 13

Defendant gender Male 4 22 34 109 40 16 Female 13 20 32 49 26 18

Defendant race White 13 30 58 96 35 28 Black 8 18 20 115 40 20 Other 1 – 43 – – 3

Complainant gender (men) MSW – – 44 1,353 b 213 146 e

MSM – – 17 23 b 15 20 e

Race, gender White men 7 18 44 93 33 24 White women 43 94 152 118 47 22 Black men 7 24 26 142 49 25 Black women 10 7 3 24 22 11 Other men 2 – 45 – – – Other women – – 35 – – –

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Race, complainant gender (men) White MSW – – 57 1,284 b 211 108 e

White MSM – – 29 21 b 15 9 e

Black MSW – – 40 1,449 b 234 47 e

Black MSM – – 7 28 b 16 8 e

Other MSW – – 43 – – – Other MSM – – 19 – – –

note: Numbers are rounded to the nearest whole number for ease of review. a Risk category for male cases with “no risk reported” in Missouri was imputed. See appendix 1 for details. b Diagnosis data for Florida were available for the years 1996–2014. 2015 values are estimated using 2014 fi gures by demographic category. c Diagnosis data for Missouri were available for the years 2006–2014. 1996–2005 values are imputed using an average of 2006–2015 fi gures by demographic category. 2015 values are estimated using 2014 fi gures by demographic category. See methodological appendix for additional details on imputation methods. d The analyses including partner gender data are based on 206 convictions in three states. That number does not equal the sum of the total number of convictions in those states because it includes only convictions involving sexual contact and convictions for which partner gender data was available.

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174 | The Criminalization of Sickness

conviction than Black straight men—with rates of conviction observed of more than twice that of Black straight men.

This chapter began with a highly racially charged case involving a Black gay male defendant. Some activists charge that these laws target gay Black men. But does the evidence bear this out? Black gay men make up 50 percent of HIV diagnoses among gay men and other MSM and account for a similar proportion of convictions among gay men (45 percent). This study estimates that White and Black gay men are con- victed at similarly low rates: about 9 convictions per 10,000 diagnoses for White gay men and 8 for Black gay men. This trend is roughly the same in all three states studied, with the exception of Michigan, where White gay men are observed to experience higher rates of conviction.

The fi gures presented in table 4 are equally surprising for women. As mentioned previously, studies have shown that Black women are incar- cerated in the United States at rates more than three times that of White women. This would suggest that similar disparities might exist in convic- tion under HIV exposure and disclosure laws. However, as the previous section already demonstrated, Black women account for just 12 percent of all convicted defendants and White women make up 16 percent. There might still be a disparity in rates of conviction if White women were to account for an overwhelming majority of HIV diagnoses. Yet, the opposite is true: Black women account for over 60 percent of HIV diagnoses among women. In every state analyzed, White women are convicted at rates far greater than those observed for Black women. In Michigan, for example, HIV-positive White women are convicted at rates fi fty times that of Black women. Overall, this study estimates that HIV-positive White women are convicted at a rate of 22 per 10,000 diagnoses as compared to 11 per 10,000 diagnoses for Black women.

victim impact: the case for disparity- generating crime reporting

When counselors brought Franklin’s partner from the hospital to the rape crisis center, he had to decide whether to call the police. Although it is not possible to know what went through his mind, partners who discover that a lover, a fl ing, or a one-night stand is HIV positive but did not tell them likely grapple with several questions: Was what happened a crime? If it was, should I report it? They may not realize that what happened was a prosecutable off ense. Even if they are aware of HIV- specifi c criminal laws in their state, they may not wish to pick up the

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Victim Impact | 175

phone and call police to report their partner. They could hesitate for several reasons. They may not wish to discuss their sex lives with the police. They may not trust the police to treat them with dignity and respect. Alternatively, they may not believe that their partner deserves criminal sanction.

There is good reason to believe that there are diff erent patterns of crime reporting between groups. For example, studies show that gay and lesbian crime victims are less likely to report crimes to the police than heterosexuals are; other studies show that crime is less likely to be reported to the police when the off ender is White or when the victim is male or White.39 Could the trends in conviction outcomes observed in this analysis be due to reporting?

This study shows that HIV-positive, White heterosexual men and White women were both convicted at greater rates than their Black counterparts. This would make some sense from a reporting perspective. Although it is not possible to know the race of the complainant in most cases, studies show that Americans tend to couple with partners of the same race. Although rates of interracial marriage are on the rise, a recent study reveals that only 15 percent of marriages in 2010 were between spouses who identifi ed as a diff erent race (compared to 6.7 percent in 1980). This trend is especially true for heterosexual Black women: only 9 percent of Black female newlyweds marry a man of a diff erent race (compared to 24 percent of Black men).40 Thus, while there is certainly some variation, it is reasonable to assume that most defendants were accused by complainants of the same racial background.

Heterosexual Black men and Black women may be less likely to be convicted than heterosexual White men and White women because their Black partner is not as likely to report them to the police—either because they do not trust the police or because they do not believe it is a legal matter. Similarly, a reporting-based theory posits that gay men are convicted at lower rates because they do not trust police or they do not believe that police should get involved.

A second, related explanation for these disparate reporting practices may be the coinciding diff erences in HIV prevalence in the communities studied. As shown in table 5, gay men have the highest HIV prevalence, by far, of any community in the United States; one recent study estimated that 8 percent of all gay men and 21 percent of Black gay men are living with HIV.41 In such a high prevalence context, many gay men would not be shocked to discover that someone they had sex with is living with HIV. As this table illustrates, using crudely estimated HIV prevalence

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176 | The Criminalization of Sickness

rates for heterosexual men and women, there appears to be a nearly perfect inverse relationship between HIV prevalence and rates of convic- tion under HIV-specifi c criminal laws. If HIV prevalence is high in par- ticular demographic group, this study suggests that the corresponding prevalence of convictions under HIV specifi c criminal laws will be low.

These fi ndings suggest perceived HIV threat may in part explain dif- ferences in reporting: if you have sex with a person from a low-preva- lence demographic group, it may be particularly shocking and alarming to discover he or she was living with the disease. This argument is related to but diff erent from racial threat hypotheses of crime control, which posit that greater proportions of people of color will result in White authorities enacting more strident and punitive policies to control them.42 In this case, however, greater proportions of people living with HIV are theorized to be associated with fewer HIV exposure and disclosure cases being reported to law enforcement, thereby lessening the burden of the criminal law in a particular population. Straight White men and women make up less than 4 percent of people living with HIV in the United States, yet they constitute 27 percent of convictions analyzed in this study; conversely, gay men constitute more than half of all people living with HIV in the United States, but they represent just 23 percent of con- victions.43 While there are likely multiple factors driving these dispari- ties, the reaction of a potential complainant to the news that a prior sexual partner is HIV positive likely plays a key role.

table 5 estimated hiv prevalence compared to estimated conviction rates

Group Estimated HIV prevalence Conviction rate

White MSWa 0.01% 108 White womena 0.05% 22 Black MSWa 0.32% 47 Black womena 0.82% 11 White MSMb 5.52% 9 Black MSMb 21.02% 8

a Estimated prevalence rates for White MSW, White women, Black MSW, and Black women are crudely estimated using 2013 Census population estimates of adults 16 years or older and CDC esti- mates of the population of Americans living with HIV at year-end 2013. b Estimated prevalence rates for White MSM and Black MSM are taken from David W. Purcell, Chris- topher H. Johnson, Amy Lansky, Joseph Prejean, Renee Stein, Paul Denning, Zaneta Gau, Hillard Weinstock, John Su, and Nicole Crepaz, “Estimating the Population Size of Men Who Have Sex with Men in the United States to Obtain HIV and Syphilis Rates,” Open AIDS Journal 6 (September 7, 2012): 98-107.

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Victim Impact | 177

punishing hiv: analyzing trends in sentencing, 1992–2015

The fi ndings of the previous sections would seem at odds with an argu- ment that HIV exposure and disclosure laws are applied in discrimina- tory ways. However, conviction outcomes are not the only possible way to evaluate whether discrimination exists under the law. As outlined earlier in the chapter, there are multiple contexts for discrimination under the criminal law. One frequently analyzed context is sentencing. Although Black men and women may be less likely to be convicted under the law, are they punished more harshly than White men and women when they are convicted? The fi rst analyses on overall trends and demographic trends by race and gender are based on 393 convic- tions in Arkansas, Florida, Louisiana, Michigan, Missouri, and Tennes- see. The subsequent analyses on sexuality are limited to those three states for which partner gender and sentencing data were available, rep- resenting 190 convictions in Michigan, Missouri, and Tennessee.

Figure 17 illustrates the average prison and probation sentences handed out by each of the six states. Notably, sentences at the low end of the spectrum in Michigan include 2 years in prison or 2 years on probation. At the long end of the spectrum in Arkansas, defendants sentenced to prison (rather than probation) are ordered to serve an average of 228 months, or 19 years. The average sentence in all six

250

2 2

6 0

4 2

3 9

1 0

4 3

2 5

2 3

1 2

5 2

7 8

5 3

9 2

4 7

200

150

100

0 AR FL LA MI MO TN Total

Average prison term in months Average probation term in months

figure 17. Average prison and probation sentences in six states (AR, FL, LA, MI, MO, TN), by number of months, 1992–2015, Source: Trevor Hoppe.

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178 | The Criminalization of Sickness

states was 92 months in prison (nearly 8 years) or 47 months on proba- tion (four years). Average sentences waxed and waned slightly over the study period, with an average prison term of 63 months observed between 1995 and 1998; 115 months between 1999 and 2002; 79 months between 2003 and 2006; and 93 months between 2007 and 2010. The proportion of cases receiving prison sentences declined about 3 percent every four years, from an average of 88 percent in 1995–1998 to an average of 77 percent between 2007 and 2010.

Sentences under HIV exposure and disclosure laws varied along a number of demographic lines. Figure 18 illustrates the average prison and probation sentences by gender, race, and gender by race. At fi rst glance, there appear to be several important diff erences. Men were sen- tenced to prison sentences that were three times longer on average than their female counterparts (110 versus 36 months)—a trend that was consistent in fi ve states. Second, it appears that Black defendants were sentenced more harshly than White defendants, ordered to serve an additional 33 months in prison—a trend consistent across three states. Finally, Black male defendants were sentenced to serve nearly three more years in prison than White men—a trend consistent across four states (Arkansas, Louisiana, Michigan, and Tennessee).

However, some of these observed diff erences are primarily driven by large diff erences between defendants who accept a plea bargain versus

Male

Gender Race Gender * race

Female Black White Black men

White men

Black women

White women

1 1

4 7

3 6

4 8

1 0

5 1

7 2

3 9

1 2

5 2

9 0

3 5

3 1

4 6

3 9

5 160

100

120

140

Average prison sentence in months Average probation sentence in months

figure 18. Average prison and probation sentences in six states (AR, FL, LA, MI, MO, TN), by gender, race, and gender by race. Source: Trevor Hoppe.

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Victim Impact | 179

those who take their case to trial. As it was possible to conduct this analysis on the data from only Missouri, Michigan, and Tennessee, fi g- ure 19 illustrates the same demographic variations shown in fi gure 18 for the 27 defendants who took their case to trial and for the 139 defendants who pleaded guilty or no contest. There are extreme diff er- ences between sentences handed out at trial to Black men and to White men (186 months versus 45 months). However, there are no similar dif- ferences between sentences handed out by plea bargain. These diff er- ences varied by state, however. In Michigan, Black men were sentenced more harshly than White men at both trial and by plea bargain; in Mis- souri and Tennessee, Black men were sentenced much more harshly than White men at trial but not by plea bargain (223 versus 51 months in Missouri at trial; 182 months versus 36 months in Tennessee).

Overall, Black women were slightly less likely to be sentenced to prison or jail than White women: 85 percent of White women defend- ants were incarcerated versus 77 percent of Black women defendants. On average, White women received longer prison and probation sen- tences than Black women did (no Black women took their cases to trial in the three states examined in fi gure 19). However, because of the small number of Black women convicted overall, what appears to be a sys- tematic trend is really driven only by a small number of cases in Tennes- see. No Black women were sentenced to prison in Arkansas, Louisiana,

0 20

Male

Gender Race Gender * race

Female Black White Black men

White men

Black women

White women

1 5

7 7

3 2 4

1 8

7 1

4 3

7 7

1 8

7 3

4 5

8 6

3 6

3 2

5 1

100 80

140 120

180 160

200

Average prison sentence at trial Average prison sentence by plea

figure 19. Average prison sentences by trial and plea in three states (MI, MO, TN), by gender, race, and gender by race. Source: Trevor Hoppe.

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180 | The Criminalization of Sickness

Michigan, or Missouri, for example. Sentences were comparable in Florida (26 months for Black women and 25 months for White women). In Tennessee, however, they were quite diff erent but involved a very small number of defendants: three White women were sentenced to an average prison term of 130 months, while four Black women were sen- tenced to an average of 36 months. Therefore, sentencing data for female defendants across race are diffi cult to interpret.

Figure 20 illustrates sexuality for male defendants and sexuality crossed by race for the three states (Michigan, Missouri, and Tennessee) in which partner gender data was available. This analysis is limited to men because women are accused by only male complainants in HIV disclosure and exposure cases.44 Overall, heterosexual men or MSW were sentenced to prison terms roughly a year longer than their gay or MSM counterparts. Overall, Black heterosexual men were sentenced to similar prison terms as Black gay men, and Black hetero- sexual men were slightly less likely to receive a prison or jail sentence than Black gay men were—an unexpected trend that was consistent in all three states. White gay men were sentenced to an average of 18 fewer months in prison than White straight men were. As shown in fi gure 21, however, several of these diff erences are driven by large diff er- ences in trial sentencing. Among just the cases settled by plea bargain, Black and White straight men were sentenced equivalently whereas

MSM

Sexuality (men) Sexuality (men) * race

MSW White MSW

White MSM

Black MSW

Black MSM

40 3 8

7 6

5 2

8 8

7 1

3 6

5 3 5 4

9 8

9 6

4 4

100

120

Average prison sentence in months Average probation sentence in months

figure 20. Average prison sentences in three states (MI, MO, TN), by sexuality (men) and sexuality by race (men). Source: Trevor Hoppe.

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Victim Impact | 181

Black and White gay men were sentenced less harshly than their straight counterparts.

There was some variation in prison and jail dispositions for straight and gay defendants. Seventy percent of gay or MSM defendants were sentenced to jail or prison, compared to 83 percent of straight or MSW defendants. This trend was consistent across all three states. White straight men were far more likely to receive a prison or jail sentence than White MSM were: 94 percent versus 60 percent, respectively. This trend was consistent in all three states, with the greatest diff erence observed in Missouri, where just 38 percent of White gay male defend- ants were incarcerated compared to 89 percent of White straight male defendants. Heterosexual Black defendants were less likely to be incar- cerated than their White straight male counterparts (79 percent versus 94 percent). The trend is reversed for gay and other MSM defendants: Black gay male defendants were more likely to be incarcerated than their White gay male counterparts (85 percent versus 60 percent). Both trends were consistent across all three states.

leniency for gay men or benevolent sexism?

Do the fi ndings presented in the previous section reveal a “gay bonus” or a “straight penalty” when it comes to sentencing under state HIV

MSM

Sexuality (men) Sexuality (men) * race

MSW White MSW

White MSM

Black MSW

Black MSM

100

1 2

5 8

1 6

7 2

1 2

7 3

5 4

5 2

7 3

1 7

2 1

6 1

150

200

250

Average prison sentence at trial Average prison sentence by plea

figure 21. Average prison sentences by trial and plea in three states (MI, MO, TN), by sexuality (men) and sexuality by race (men). Source: Trevor Hoppe.

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182 | The Criminalization of Sickness

exposure and disclosure laws? In fact, the sentencing patterns between men and women suggest that it may not have anything to do with the sexuality of the defendant; instead, it may have something to do with the gender of the complainant. Data presented in the previous section consistently showed that men were sentenced to lengthier prison terms than women. This echoes other fi ndings throughout the criminal justice system that show women are treated more leniently than men. This sug- gests that women defendants are viewed as less of a threat and, perhaps, with greater empathy by prosecutors and judges—a form of what schol- ars of gender-based prejudice would call “benevolent sexism.”45 Although the bias benefi ts women defendants in these cases, scholars argue that they are nonetheless rooted in sexist beliefs that women are weak, vulnerable, and in need of male protection.

The trend between straight and gay defendants, on the one hand, and male and female defendants, on the other, may in fact both be products of benevolent sexism. If judges and prosecutors view women defendants with greater empathy, it would be reasonable to assume that their biases would also extend to their view of crime victims. This would echo anal- yses of death penalty cases that show that Black defendants are more likely to receive the death penalty when their victim was White. In this case, both Black and White defendants accused of not disclosing their status to female complainants who plead guilty are treated more harshly than defendants accused of not disclosing to male complainants.

There is less evidence to support the alternative hypothesis that defendants who are gay are treated more leniently. Most theories of discrimination based on sexual orientation would predict that hetero- sexual judges and prosecutors would typically view gay male defend- ants as more threatening. For example, studies have shown that gay men convicted of child molestation are more likely to receive prison sentences than heterosexual male defendants are.46 Although gay men are treated more leniently, in eff ect, in HIV exposure and disclosure cases, the evidence suggests that has less to do with their sexual orienta- tion and more to do with the gender of their partners.

conclusion: victim impact

Over the past four decades, victims have come to play an increasingly signifi cant role in shaping the application of the criminal law in Amer- ica. The victim rights movement persuaded many state legislatures to enact laws that guaranteed crime victims certain rights as law enforce-

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Victim Impact | 183

ment authorities investigate, prosecute, and sentence criminal defend- ants. The title of this chapter refers to the statements that victims are allowed to present at criminal sentencing hearings. These “victim- impact statements”—some of which are analyzed in chapter 5—serve as an outlet for victims to communicate the harm infl icted upon them by the defendant; they can also directly infl uence how prosecutors and judges adjudicate a particular case, as the analysis in chapter 5 demon- strated.47 This chapter harnesses this concept to consider how crime victims shape the application of HIV exposure and disclosure laws in the United States—both within and outside American courtrooms.

The fi rst section of this chapter argued that complainant characteris- tics drive the application of HIV exposure and disclosure laws. Far from showing a disparate impact on racial and/or sexual minorities, the fi nd- ings presented in this chapter evidence a seemingly perplexing trend: heterosexual White men and women bear the brunt of the application of HIV exposure and disclosure laws. How could this be? The argument presented in this chapter is that not all potential complainants are equally likely to report criminal cases or “complain” to the police. Two theories are off ered to explain why this would be the case.

First, given that gay men and Black women are infrequently prose- cuted, it appears that their partners—typically other gay men and straight Black men, respectively—are the least likely to fi le complaints. As it turns out, these partners belong to the same groups that one would expect might be hesitant to call the police. After all, gay sex was illegal in many states until relatively recently, when the Supreme Court decided Law- rence v. Texas (2003). In a 2005 report on police brutality against LGBT Americans, Amnesty International concluded that “LGBT people con- tinue to be targeted for human rights abuses by the police based on their real or perceived sexual orientation or gender identity.”48 Empirical stud- ies back up these claims, suggesting, for example, that many police offi c- ers hold antigay attitudes; 49 that many LGBT victims of hate crimes do not report their crimes to police because they fear police mistreatment;50 and that reports of police misconduct and inaction in cases involving LGBT crime victims are persistent over time.51 Therefore, even if gay male potential complainants “name” their experience as a criminal off ense and “blame” their partners, gay male potential complainants ultimately may decide not to fi le a formal “complaint” with law enforcement.

As for why Black men may not choose to report cases of HIV nondis- closure to the police, evidence of mistreatment of African Americans in the criminal justice system demonstrates a pervasive pattern of abuse

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and discrimination that has created a hostile and adversarial relation- ship between law enforcement and Black communities.52 Legal scholars argue that these trends extend beyond police and front-line law enforce- ment personnel to prosecutors who wield considerable discretionary power in deciding who to charge and for what off ense.53 This combative legal context may understandably discourage many Black men from inviting the state into their private lives.

While some potential complainants may hesitate to make a “com- plaint” to police, there is also reason to believe others still may not “name” or “blame” their partners. As shown in table 5, the evidence suggests a nearly perfect inverse relationship between the prevalence of HIV in a particular demographic category and the risk of conviction for members of that community. Perceived HIV threat may be shaping the law’s applications. For example, because straight White men and women have prevalence rates of less than 1 percent, many heterosexual White Americans have likely never even entertained the possibility of sex with an HIV-positive person—much less the reality. Thus, fi nding out that a partner was HIV positive is likely to be met with a much more violent and upset reaction—and a sense that a grave injustice was committed. In such cases, potential complainants may be more likely to “name” the failure to disclose as criminal and “blame” their partners for not telling them. By contrast, with estimated prevalence rates of more than 20 percent among Black MSM, the odds of having sex with another HIV-positive person are quite high for members of that com- munity; in such a context, “naming” and “blaming” may be less likely.

Notably, these arguments do not mean that race and sexuality never fi gure in the prosecution of Black defendants. This chapter opened with a discussion of a particularly infl ammatory case against a young gay Black man in Missouri, Michael J. To say that gay Black men are not more likely to be convicted than other groups does not negate the fact that Michael was demonized in court specifi cally because of his race and sexuality. Indeed, the sentencing data presented in this chapter sug- gest that—if charged—Black gay male defendants who take their case to trial like Michael face stiff penalties under the law at sentencing. When Black men are convicted at trial, this chapter reveals that they are punished more harshly than their White counterparts; this trend is con- sistent for both heterosexual Black men and Black MSM like Michael. Therefore, his sentence of thirty years in prison refl ects larger patterns.

As this chapter also revealed, both Black and White gay men who plead guilty or no contest are sentenced less harshly than their hetero-

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sexual counterparts. Black and White women are treated far more leni- ently than their male counterparts. These trends are explained as the product of benevolent sexism: judges and prosecutors view women as vulnerable and less threatening, leading to reduced sentences for female defendants and for increased sentences imposed against male defend- ants accused of not disclosing to their female partners and who accept plea deals.

This chapter began with a discussion of how social scientists theorize discrimination under the law by categorizing its form, basis, and con- text. What does this chapter reveal about the application of HIV expo- sure and disclosure laws in the United States? First, what form does it take? The fi rst section of the chapter argues that patterns in the law’s enforcement suggests a disparate impact. Disparate-impact discrimina- tion is driven by policies that are neutral on their face but in practice disproportionately impact certain communities. Although many people would suspect that HIV exposure and disclosure laws would dispropor- tionately impact racial and sexual minorities, the observed disparate impact does not align along conventional expectations; rather than gay men and racial minorities being impacted disproportionately, hetero- sexual White men and women shoulder the burden of the law. This chapter argues that victim characteristics serve as the basis for the law’s disparate impact. This chapter explains the disparate impact by arguing that the likelihood of a potential complainant reporting a partner’s fail- ure to disclose varies along demographic lines—with gay men and Black men the least likely to report their partners. This chapter further argues that the context for this disparate impact is at the stage of reporting.

The second section of the chapter analyzes sentencing outcomes. Rather than a disparate impact, these fi ndings suggest that diff erent defendants are treated diff erently at sentencing in certain contexts. The demographic characteristics of both the defendant and the complainant appear to form the basis of this disparate treatment. Black men are pun- ished more harshly than White men at trial and men are punished more harshly than women. In addition, men accused of not disclosing to women complainants are treated more harshly than men accused of not disclosing to male complainants in cases where a defendant pleads guilty or no contest. The context for these fi ndings is the sentencing stage of law enforcement.

If these theories are correct, then what would such a diagnosis off er anticriminalization advocates who wish to reform the law’s applica- tion? First, the evidence suggests that reporting drives disparities in the

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law’s application. The remedy for this disparate impact is not auto- matically clear, however. Equality could result from either prosecutors charging gay men more frequently or prosecuting straight people less frequently. Presuming most advocates would believe the latter proposal to be more appealing, then the only potential strategy would seem to be reach out to heterosexual communities with the goal of making HIV less threatening. Most straight Americans (not to mention gay Ameri- cans) likely have no idea that treatment all but eliminates the possibility of sexual HIV transmission. If the theory of HIV threat is true, then normalizing HIV would ultimately translate into fewer prosecutions.

Second, these fi ndings—as well as those presented in chapter 5— reveal the importance of focusing on sentencing as a potential context for discrimination under the law. Chapter 5 reveals that ignorant state- ments about HIV and its transmission can directly infl uence the punish- ment handed out in criminal courts. The fi ndings presented in this chap- ter reveal that diff erent kinds of defendants and complainants are associated with diff erent sentencing outcomes. This again raises the question, what is the remedy? Equality could mean punishing women and gay men more harshly or punishing straight men more leniently. Presuming that less-harsh sentencing is the goal, there are several recourses available to advocates. First, judges and prosecutors typically rely on sentencing guidelines issued by the state that are specifi c to a particular law; these administrative guidelines are often the most criti- cal factor in shaping how judges and prosecutors approach sentencing in a particular case. Advocating for their reform might prove one poten- tial recourse. In addition, educating judges and prosecutors about HIV and its transmission might reduce the frequency with which ignorance seems to directly inform sentencing in HIV-related prosecutions.

These proposals are but a few of many that likely could aff ect the application of HIV exposure and nondisclosure laws. They are presented as a tool for generating ideas that respond to the specifi c diagnosis off ered in this chapter. Targeting the factors that most clearly shape the law’s application will maximize the impact of any eff orts toward reform. For example, this chapter did not raise issues relating to whether a defendant is found guilty or not (the context of juries, for example). This was pur- poseful. Only a tiny fraction of cases is decided by a judge or jury. To this point, a 2015 study from the Williams Institute at UCLA revealed a star- tling statistic: when prosecutors charged a defendant under one of Cali- fornia’s HIV-specifi c laws, they secured a conviction in 389 cases out of 390 (99.8 percent).54 During the course of research for this book, only a

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small handful of cases were ever identifi ed in which the defendant was acquitted or the charges dismissed. Once charges are brought, conviction is nearly inevitable. Focusing on the areas of the law’s application that reveal its uneven application may prove a useful strategy in a society that places great value on equal justice under the law.

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