As of 2018, 26 states still have laws criminalizing HIV on the books. Put in place in the late 1980s and early-1990s, before the development of highly effective antiretroviral therapy when an HIV diagnosis was often considered a death sentence, the laws frequently still equate knowingly exposing someone to HIV with attempted murder.
Decades later, the laws continue to stigmatize poz folks despite the development of medications that suppress HIV to such low levels that it’s undetectable and impossible to transmit. Activists have been fighting for years to update HIV laws to reflect current science and have recently had success with modernizing laws in states such as California and North Carolina.
Yet in other places, people living with HIV continue to be charged with felonies for allegedly failing to disclose their HIV status to a sexual partner, engaging in sex work while HIV-positive, or spitting on a law enforcement officer (despite the fact that saliva cannot transmit HIV). Cases that make it to court rarely turn out well for defendants.
For many activists, one recent case in particular is a reflection of the slow progress toward decriminalization.
Sanjay Johnson was arrested in August 2017 when Little Rock, Ark., police charged him with “knowingly and willfully exposing another to HIV.” For simply having consensual sex with another adult, the 26-year-old was suddenly facing a felony charge carrying a sentence of 10 years or more in prison. If convicted, he would also have been required to register as a sex offender for the rest of his life.
So activists were happy when, in February, an Arkansas court sentenced Johnson to five years probation and ordered him to pay a $750 fine. It wasn’t an acquittal, but the plea bargain reached by Johnson’s lawyer, Cheryl K. Maples, did win Johnson his freedom, and that was the most important thing. The prosecutor amended the charge to aggravated assault and Johnson entered a “no contest” plea in which he accepted the ruling but didn’t admit to guilt.
While the lengthy probation and threat of jail time if he violates certain conditions are abhorrently unfair, Johnson’s escape from detention is something that would have unlikely occurred even five years ago.
Maples credits the scientific consensus of U=U, or undetectable equals untransmittable, as a major reason why the state’s HIV crime law did not apply to Johnson’s case.
When an HIV-positive person has an undetectable viral load, it is impossible for them to transmit HIV to a negative partner — and therefore any arguments about “exposure” should hold no water in legal proceedings.
Maples plans on taking Johnson’s case to federal court, arguing that the law is unconstitutional.
“I feel that I have an excellent chance of success,” says Maples, who is also representing another poz client with the same charge. “If I am successful in federal court, my other client won’t have to face possible conviction under the statute — and neither will anyone else.”
As it currently stands in Arkansas, an HIV-positive person must inform their partner of the “existence” of the virus, Maples explains, and failure to disclose can result in a sentence of up to 30 years in prison and having to register as a sex offender for the rest of your life.
If their case is successful, the duo hope it will force Arkansas to implement a major revision of the law, perhaps in line with changes California and North Carolina have made, reducing the charge from a felony to a misdemeanor and preventing defendants who have been undetectable for at least six months from serving jail time.
Johnson, who will be the lead plaintiff in the federal lawsuit, has become an activist for the cause and remains optimistic about the process.
“I hope my case basically started [a] conversation about HIV today not [being] what it was,” he explains. “Considering modern medicine, just for one thing. Having more education about it in schools, and just in general, whoever you are — Black or white, gay, straight, bi, trans — having a conversation.”
Admittedly, the Osceola, Ark.-born Johnson says he wasn’t well informed before he was charged, which is what fuels him to educate other people about the issue today. He continues his mission despite the added burdens of being on probation, such as requirements that he now obtain permission from the court in order to travel out of the state. Because he didn’t “win” he’s also responsible for court fees, and, he says, if he misses a payment, he risks violating probation.
“What I feel as a Black man in the system now — unfortunately, they are probably looking for me [to] mess up,” he says of the five-year probation — an unusually long time given that a typical probation period for a misdemeanor is one to three years.
“To be honest, I believe politics unfortunately played into it,” he adds. “My mug shot was plastered all over social media while I was in jail. People automatically assumed that I’m out here infecting other people and stuff like that, and that’s not the case.” He says that experience has made him think twice about assuming the guilt of those arrested or accused of crimes.
“That’s why, for me personally, when I see a mug shot of anyone else, I don’t say anything because I know how my case was.”
One thing is for sure. This isn’t the end of the fight for Johnson. “In five years or less I hope to see more education about [HIV criminalization] and conversations…because [another case like mine] will happen in the future if it’s not being talked about.”