EXCLUSIVE: Missouri Prosecutors Relying on Banned Document as ‘Smoking Gun’ in Case Against College Wrestler
BY Todd Heywood
August 12 2014 4:00 AM ET
A document being used to prosecute former college wrestler Michael Johnson under Missouri's draconian HIV laws, and referred to by prosecutors as a ‘smoking gun,’ is not an official state of Missouri document. Ryan Hobart, spokesperson for the Missouri Department of Health and Senior Services which oversees HIV programming for the state, admits the document “is not a DHSS form.” Hobart did not respond to follow up questions.
The document first came to light in a July story on BuzzFeed by writer Steven Thrasher. Thrasher was apparently unaware that such documents were discontinued by order of DHSS in April 2011. The document, Thrasher reports, was signed by Johnson on Jan. 7, 2013 – nearly two years after the state ordered the documents no longer be used.
“When [a reporter] called us it gave us an opportunity to re-evaluate policies and procedures and yeah that is something that is not necessarily required,” Michael Herbert, then the HIV Program director for Missouri, told Michigan Messenger in April 2011.
The document referred to as a "confidential disclosure" has a diagnosed person acknowledging he or she has tested positive for HIV. The document then explains how HIV is and is not transmitted. No where in the document is a signator warned that the document could be used as evidence in pursuit of criminal charges if a person with HIV is accused of failing to disclose his or her HIV-positive status to a sexual or needle sharing partner.
Such documents have come under fire in Michigan, Indiana, and Missouri. Michigan ordered local health departments to review such documents to make sure they were legally accurate and encouraged the agencies to stop using them altogether to end “stigma.” Indiana refused to address concerns about the documents.
More generally, HIV-specific criminal statutes have come under continued fire over the last five years. The UN Global Commission on HIV and the Law condemned such laws and called for their repeal, as well as pardons for all persons convicted under those laws. The Department of Justice last month released a guidance to all states calling on them to review their laws. The guidance encourages repeal and modernization of the laws to prosecute only those who intend to transmit the virus and do so.
“With regards to DHSS, enforcing the signing of such a document goes against the public health mission of the agency,” says AJ Bockelman, executive director of PROMO, an LGBT equality organization in Missouri. “It reinforces the fear that if you get tested, you are tracked and it could be used against you. I question whether there could be Constitutional grounds, especially in Johnson's case, for a case against either the law enforcement body or the State of Missouri for requiring such a form in the first place.”
Johnson, 23, was charged in January 2013 with five counts of violating Missouri’s HIV-specific law. One of those counts charges Johnson infected one of his sexual partners, the other four counts are for allegedly attempting to infect his partners, according BuzzFeed.
That law requires disclosure of an HIV-positive status. Not only does the law prohibit sexual activity without disclosure, it also criminalizes biting while HIV-positive, sharing needles and donation of blood, tissues and organs. It specifically prohibits the use of a condom as a defense to mitigate the allegations of exposure and misnamed as an “intentional transmission” law. Transmission does not have to occur for a person to be charged with a crime under Missouri law.
The BuzzFeed report deconstructed the roles of race and identity in the case. Also of import in the report is evidence that Johnson is semi-literate and struggles with dyslexia.
“Instead of working to minimize the impact of HIV, criminalization laws only advance the stigma of HIV,” says Bockelman. “[Missouri's] DHSS is adding to a viscous cycle rather than working to eliminate the barriers for comprehensive care.”