...except in at least 32 states, it can be.
When we were first confronted with HIV in the United States in the 1980’s, contracting the virus was largely understood to be a death sentence. Thirty years later, with treatment and access to medical care, HIV is a treatable, even if incurable, condition.
Yet even as science and treatment has advanced, we are arresting and locking people with HIV up for engaging in consensual sex, for bleeding, for spitting, for existing.
As the Center for HIV Law and Policy , “Thirty-two states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least 180 such prosecutions occurred from 2008 to 2013 alone.”
While framed as public health measures intended to prevent the spread of HIV, in reality these laws stigmatize people with HIV and misrepresent the causes of HIV transmission, the treatment options, and outcomes for people living with HIV and people of color.
In reality, as the Department of Justice , “many of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”
But despite the position of the federal government and major medical associations, state prosecutions for exposure to HIV continue.
Last week, a Missouri jury sentenced , a young, black gay man living with HIV, to over three decades in prison for allegedly exposing consensual sexual partners to HIV .
A star wrestler at Lindenwood University in St. Charles, Missouri, Johnson was revered for his strength, athleticism, and sexual desirability. That same body that brought wrestling wins to the university and which attracted admirers on social media quickly became the subject of racialized tropes about the danger of black male sexuality when he was arrested and his HIV status widely publicized.
For example, Buzzfeed that “Overtly racist blogs, like Chimpmania.com, labeled him an ‘HIV Positive Buck.’” In imagery and discourse that has been used to restrain and criminalize black sexuality since chattel slavery, reports cast him as a strong, predatory weapon that preyed on smaller white victims.
As with many criminal laws, laws making exposure to HIV a gay and trans people of color whose sexuality is already perceived as dangerous and deviant. In response to the racialized targeting of Johnson in the public discourse, fellow black gay men him a public letter of support:
“For you, your accusers saw your Black and masculine body as a site of ultimate sexual pleasure, until they had to deal with you as a whole person. At that moment you became a problem and were disposable to them.”
Johnson went from revered to reviled and spent 18 months in jail awaiting trial. For the past three months, he has had no contact with other prisoners, instead spending 23 hours a day in lockdown segregation. He then was tried and convicted before an , which included jurors who believed that “.”
Though prosecutors attempted to analogize non-disclosure of HIV to driving under the influence of alcohol, the charge and punishment levied upon Johnson are in no way comparable to how drunk driving is treated under Missouri criminal law. While drunk driving is a misdemeanor offense with a maximum of six months in jail for first time offenders, Johnson was charged and convicted of six felonies and will face between 30 and 60.5 years in prison.
A combination of racism, homophobia, and a gross misunderstanding (or perhaps deliberate rejection) of science led to the inhumane conviction and sentence of Johnson under the HIV criminalization scheme, which is, according to the open letter, “.”
For those of us in the LGBT community, the rejection and outright disposal of people living with HIV is our history and our fight. There is still work to be done to fight the stigma of living with HIV. Almost 30 -years since the founding of ACT UP, the calls to “Stand up. Fight Back. Fight AIDS.” must continue. And those calls mean fighting the criminalization of HIV.
And to Michael Johnson, we will stand with you and support you in this fight. Your body was marked for disposal because of your blackness, your gayness, and your HIV status. We will not tolerate such injustice.
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News & CommentaryMar 2024
HIV
Fighting Back Against Discriminatory Laws That Impact People Living with HIVFighting Back Against Discriminatory Laws That Impact People Living with HIV
The ACLU is challenging a Tennessee law that criminalizes HIV status. This law unfairly prevents people from securing employment and housing. -
Press ReleaseNov 2023
HIV
Plaintiffs File Federal Suit to Overturn Tennessee’s Aggravated Prostitution StatutePlaintiffs File Federal Suit to Overturn Tennessee’s Aggravated Prostitution Statute
MEMPHIS, Tenn. — Tennessee’s Aggravated Prostitution statute and related sex offender registration requirements are unconstitutional and violate the Americans with Disabilities Act (ADA), according to a federal lawsuit filed today against the state by the American Civil Liberties Union, the Transgender Law Center, and the ACLU of Tennessee in the U.S. District Court in Memphis on behalf of four Jane Doe plaintiffs and OUTMemphis, the state’s oldest and largest service provider for LGBTQ+ people. Plaintiffs argue that the Aggravated Prostitution statute is rooted in fear and discrimination, targeting people living with HIV for harsh punishment and forcing them to register as “violent sex offenders” for the rest of their lives. Criminalizing people with HIV defies evidence-based best practices and is patently unlawful as it singles out people living with HIV — a protected disability — for harsher punishment. “People convicted of Aggravated Prostitution must spend years in prison and then register as violent sex offenders for the rest of their lives – meaning they cannot access the housing, employment, healthcare and community life that they need to get back on their feet,” said Molly Quinn, executive director of OUTMemphis. “This statute solely targets people because of their HIV status and keeps them in cycles of poverty, while posing absolutely zero benefit to public health and safety.” “HIV stigma is becoming a thing of the past, and it’s time for state law to catch up. OUTMemphis fights so that queer people are free to live in safety, with dignity, and we believe everyone deserves that regardless of their HIV status.” Tennessee’s Aggravated Prostitution law was passed in 1991 at a time of national panic over HIV. The law targets people engaged in sex work, enhancing their charges from misdemeanors to felonies solely based on HIV status, making it difficult to find other employment. Since then, many states have moved on from criminalizing HIV, better understanding the rates and methods of transmission and the way criminalization is counterproductive to effective testing and treatment. New treatments such as Anti-Retroviral Therapy (ART) and Pre-Exposure Prophylaxis (PrEP) can reduce viral loads to undetectable levels, blocking the possibility of transmission. And yet, Tennessee state law enhances sex work from a misdemeanor to a felony, solely based on HIV status, which has long been recognized as a disability protected from discrimination under the Americans with Disabilities Act. Tennessee has no comparable law for any other infectious disease, even those that are more prevalent and transmissible than HIV. “Disability discrimination is illegal,” said Alexis Agathocleous, deputy director of the National ACLU’s Racial Justice Program, “and yet the Aggravated Prostitution singles out economically-marginalized people living with HIV for excessively harsh punishment. The results are predictable: Black women are the targets of this archaic, unscientific law – many of whom are simply trying to secure food, a place to sleep, or a way to meet their basic needs.” Entirely divorced from science, Tennessee’s law applies indiscriminately, ignoring that either party to a sexual encounter can ensure against HIV transmission in many simple and effective ways. “Each of us, regardless of our race, our genders, or our HIV status, deserves to be treated with dignity and respect and welcomed as full members of our communities,” said Milo Inglehart (he/him), staff attorney at Transgender Law Center. “With today’s filing, we join the ACLU, ACLU-TN, OUTMemphis, and our individual plaintiffs to challenge the counterproductive and discriminatory Aggravated Prostitution statute that unlawfully singles out people living with HIV, disproportionately impacts Black transgender and cisgender women, and places lifelong, punitive restrictions on those who are criminalized for trying to survive.” “The Aggravated Prostitution statute is a relic from when HIV first emerged in the 1980s and is motivated by fear, misinformation and discrimination — not sound science or evidence,” said Jeff Preptit, ACLU-TN staff attorney. “Instead of criminalizing HIV, which disproportionately targets transgender and cisgender Black women who are already socially and financially marginalized, lawmakers should invest in evidence-based public health responses to support people living with HIV to end the epidemic. All Tennesseans should be able to live a full life free from discrimination and harm, regardless of our health conditions.” In addition to violating the ADA, the lawsuit also argues that, among other things, the law violates equal protection, due process and the prohibition against cruel and unusual punishment. The plaintiffs are asking the court to strike down the Aggravated Prostitution statute and the resulting lifetime sex offender registration requirement as clearly discriminatory because they unlawfully punish people on the basis of a protected disability. The complaint filed today can be found online at: /cases/outmemphis-v-lee?document=Complaint Background on the legal challenge to Tennessee’s discriminatory Aggravated Prostitution law can be found here: /documents/fact-sheet-legal-challenge-to-tennessees-discriminatory-aggravated-prostitution-law For more information about the case: /cases/outmemphis-v-lee#legal-documents -
TennesseeOct 2023
LGBTQ Rights
+3 Issues
OUTMemphis v. LeeOUTMemphis v. Lee
OUTMemphis v. Lee is a first-of-its-kind challenge to a state-level HIV criminalization law as a violation of the Americans with Disabilities Act (ADA) and the Constitution. Plaintiffs OUTMemphis and Jane Does 1-4 seek to strike down Tennessee’s discriminatory, irrational and cruel enforcement of its “Aggravated Prostitution” law and related sex offender registration requirements. -
PodcastOct 2023
LGBTQ Rights
+6 Issues
How ACT UP Changed the Face of AIDS and ActivismHow ACT UP Changed the Face of AIDS and Activism