There's something seriously wrong with our legal system. Advocates can argue that HIV criminalization laws are generally misguided, hurtful, and unscientific public policy (hint, Missouri legislators: you can't get HIV from spit) but a new case especially highlights the disproportionately stiff penalty that college wrestler Michael Johnson received for having consensual sex while HIV-positive.
Earlier this year, Michael Johnson, a young, gay African-American studen was convicted in a Missouri court and sentenced to 30 years in prison for allegedly exposing another man to HIV. There was no genotype test, just a he said-he said from Johnson's accuser and bad science on the part of prosecutors. That he was a gay, black man who used hookup apps and had a sexually- and racially-charged nickname, played a big part in his prosecution.
Meanwhile, a white HIV-positive religious leader in Pennsylvania has just received “up to 15 years" in prison, after pleading guilty to repeatedly sexually assaulting a child. Norman "Ted" Faux was accused of sexually abusing a boy for nearly a decade while serving as pastor of the Lake Ariel United Methodist Church. Faux began assaulting the victim when the boy was just 9 years old. Faux also reportedly deliberately got the child addicted to drugs to make him more compliant.
“He perverted his role as a clergyman," argued Wayne County's First Assistant District Attorney, Pat Robinson. "He is a despicable fella and one of the most manipulative defendants I’ve ever dealt with."
State police in Honesdale charged Faux with “involuntary deviate sexual intercourse with someone less than 16 years old and involuntary deviate sexual intercourse with a child, three counts of aggravated indecent assault, and one count of indecent assault.”
As WNEP reported, a judge has sentenced Faux to up to 15 years in prison. The former minister pled guilty and, after sentencing, said he was “sorry.” Church officials told WNEP that 2011 was the last year Faux was a United Methodist pastor. That year the church officials said they received allegations of abuse and reported Faux to the police.
“The heinous acts that he’s committed, he needs to be incarcerated so that others can be protected,” said Reverend Marian Hartman of Faux. Hartman oversees more than 100 churches in the United Methodist Church’s Susquehanna Conference including Lake Ariel.
“It’s an immense betrayal of faith,” Hartman added. “And it causes spiritual harm to a lot of folks who trusted and believed in someone like that.”
Although the statute of limitations had run out on the originally reported abuse, an ensuing investigation uncovered the crimes Faux was later charged with. Allegations of HIV exposure were not part of the prosecution of Faux, but were headlines in the ensuing media making it appear once again that people living with HIV are predators just hoping to spread the virus. It's hard to decide what's worse: how the media used HIV to sensationalize both cases and scare readers or the fact that despite the differences in their intent, actions, and "victimology," both Johnson and Faux must register as sex offenders when they get out of jail. Of course, the child molester will be out in half the time (or even less).
After Johnson’s harsh sentence was announced, it was decried by numerous legal experts and HIV advocates including Mayo Schreiber, a criminal defense lawyer at The Center for HIV Law and Policy, who argued, “If you accept the prosecution’s analogy of Mr. Johnson’s conduct to drunk driving, you should know that under Missouri law, driving drunk is a class B misdemeanor. First offenders, if convicted, face a maximum penalty of 6 months in jail and most people get far less on an initial charge.”
In contrast, Johnson’s 30-year sentence is more equivalent to the state’s mandatory sentence for forcible rape of a victim under 12. Even murder in the second degree in Missouri carries a sentence of as little as 10 years. Yet Johnson’s sentence was closer to the maximum for second degree murder, demonstrating that the view of HIV as a death sentence clearly held sway in that court room.
As Scott Schoettes from Lambda Legal has previously noted, HIV criminalization laws “place all of the responsibility on one party: the party that's HIV positive" and further stigmatizes HIV. It also penalizes people for getting tested (most of the laws revolve around the defendant knowing their status if Johnson hadn’t known he was positive, he would not have been convicted).
These laws also rely on outdated information, an ignorance about HIV, or shoddy science. A 2013 review of HIV exposure arrests and convictions in a Tennessee jurisdiction found that, “over half of the arrests involved behaviors posing minimal or no HIV transmission risk.”
And like so many other aspects of our criminal system, HIV criminalization cases tend to disproportionately penalize African American men. Although 56 percent of the Tennessee defendants charged with HIV exposure were white, the 2013 study found “defendants who were black received significantly longer sentences than those who were white.”
The study's authors, including C.L. Galletly from the Center for AIDS Intervention Research, suggested the disparity in sentencing could be, in part, due to the type of offenses the defendants were charged with. In the cases researchers examined, black defendants were “more likely to be convicted of criminal HIV exposure related to a sexual interaction than persons who were white.”
HIV exposure due to sexual interaction carries stiffer sentences than non-sexual modes of exposure. But the study does not show why more black defendants are charged with these more significant offenses to begin with.
Faux and Johnson may not have lived in the same state or shared much in common. In fact one of them was a despicable abuser while the other sounds like relatively decent human being, which is what makes the unbalanced justice so disturbing. As long as a child molester can receive less than half the sentence that another man did for consensual sex with an adult, there will remain something seriously wrong with our nation’s criminal justice system — and HIV prosecutions are just a part of it.