The Missouri criminal case against former college wrestler Michael Johnson for allegedly failing to disclose his HIV status and reportedly infectin one of his male sex partners has been the focus of intense national media scrutiny. But what has not been reviewed is the use of a form which is not an official state document, and which civil liberties experts have said violate constitutional protections.
“That’s because prosecutors have in their possession what they consider a smoking gun: On Jan. 7, 2013, Johnson signed a form like this one from the state of Missouri, acknowledging that he had been diagnosed with HIV,” reported Steven Thrasher on Buzzfeed a year ago in his piece, "How College Wrestling Star ‘Tiger Mandingo’ Became An HIV Scapegoat."
"From this date forward," Thrasher continued, "any time he had sex with someone without disclosing
his HIV status, he would have been committing a felony.”
What has not been discussed in relation this form is two fold. First, the form in Missouri was not an official state form and had been discontinued in April 2011. Second, the form – and those like it identified in Michigan and Indiana – raise significant Constitutional issues about self incrimination.
"Sharing this information from the consent form with the prosecuting attorney (and, in addition, without informing the person signing the statement,) raises some serious constitutional concerns" including self-incrimination, said Jay Kaplan from the ALCU of Michigan LGBT Project at the time.
That concern was echoed by Johnson’s mother, Tracy Johnson, in the BuzzFeed interview, where she said, "No one told him, ‘Before you sign this legal document, you need to get counsel. This is a legal document, and if you go against this legal document, you can be incarcerated, and be given years in the penitentiary if he is dishonest about his medical situation.’"
In April 2011, Missouri, stopped using the document in question; yet the prosecutor in Johnson's case told Thrasher that document was a “smoking gun.”
“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 (no longer in publication) in April 2011.
In August of last year, Missouri state health officials officially disavowed the form, stating it was not an official form of the state.
In Indiana, the questionable forms have remained in circulation and use. Activists on the ground report.that the foms have lead to prosecutions of people living with HIV. This continues despite the fact the forms in question were legally and medically inaccurate. One such form, which Indiana health officials disavowed as a formal state authorized form, told HIV positive persons that engaging in mutual masturbation without disclosure was a violation of the felony law.
The document also prohibited a person living with HIV from engaging in any behavior which had been demonstrated to transmit HIV. Under the plain reading of that form, a woman who was living with HIV who got pregnant could be prosecuted, regardless of HIV medication use and suppressed viral load status.
“It seems that in several states the health department has adopted the role of Gestapo," Larry Bryant from Housing Works said at the time about the Indiana form. "Perhaps encouraged by city, state governments, in how public health policy is decided and implemented, In the absence and silence of the CDC in speaking against ignorant, outdated, and plain incorrect information and tactics that, among other things, supports laws, legislation, and policies that criminalize and discriminate people with HIV, city and state health departments become more aggressive and imposing – particularly to poor and marginalized populations.”
Bryant continued, “This document essentially defines itself as a quarantine tool. It does everything it can to isolate and sterilize people living with HIV despite contradicting itself and what we know to scientifically proven modes of transmission and prevention.”
After an investigation by Michigan Messenger, Michigan state health officials sent a letter to health departments chastising them over the use of such forms. The state stopped short of ordering the contracted health departments from using the forms, but did demand they be reviewed by legal authorities for accuracy.
The problem is, Johnson is going to prison for 30 plus years in part on evidence that should not have existed. Evidence being collected today in many states and health jurisdictions across the country. Evidence which likely violates the rights of individuals against self incrimination. These forms are yet another example of the control of people with HIV through abusive and coercive policies and practices.