Former College Wrestler Sentenced To 30 Years For "Reckless" HIV Transmission

Via the St. Louis Post-Dispatch:

A former Lindenwood University wrestler was sentenced Monday to 30 years in prison for recklessly infecting one sex partner with HIV and risking the infection of four others. Jurors in May had found Michael L. Johnson, 23, guilty of five felony charges after testimony that included experts in infectious diseases and the men who had unprotected sex with him. One of the men contracted HIV, the virus that causes AIDS. St. Charles County Circuit Judge Jon Cunningham, who issued the sentence, told Johnson he had committed “very severe” crimes. Prosecutors said he didn’t tell the partners he had HIV. “The main thing is the profound effect your actions have had on the victims and their families,” the judge said.

Johnson, once the state wrestling champion, was expelled after being charged in the case. Several major LGBT rights groups have long argued for the decriminalization of HIV transmission, citing both the advances in treatment and the responsibilities of the complainants.

UPDATE: Activists are outraged.

Mayo Schreiber, Deputy Director of The Center for HIV Law and Policy and a long-time criminal defense attorney, pointed out, "The criminal statute that Michael Johnson was convicted of violating was originally passed in 1988, at a time when HIV was considered a 'death sentence.' Today, with proper treatment, HIV is a chronic, manageable disease and those with HIV can expect to live a full, healthy life. Yet violation of the Missouri law is a class A felony, with a sentencing range of 10-30 years or life imprisonment. Other class A felonies include murder or child abandonment resulting in death. Punishing Michael Johnson as if he is a murderer because state officials have failed to address a severely outdated, irrational criminal law is not only fundamentally unfair, it is barbaric."

Dr. Jeffrey Birnbaum, a nationally-recognized adolescent HIV expert, and founder and director of the Health and Education Alternatives for Teens (HEAT), a treatment and prevention center for adolescents and young adults, expressed sadness and concern at the outcome of Mr. Johnson's case. Dr. Birnbaum stressed, "HIV criminal laws have no positive impact on the spread of HIV. Sentencing people living with HIV to prison for having sex will, based on decades of HIV clinical experience, only drive people away from health centers where they can learn their HIV status and get the medical care they need."

KANSAS: Military Court Reverses HIV Assault Conviction For Swinger Airman

Via the Associated Press:

The highest U.S. military court's reversal of a Kansas airman's aggravated assault conviction for exposing multiple sex partners to HIV at swinger parties in Wichita will effectively end such prosecutions in the armed forces, his attorney said. The U.S. Court of Appeals for the Armed Forces unanimously ruled Monday that prosecutors failed to prove that any of David Gutierrez's acts were likely to transmit HIV to his partners. That decision overturns a 25-year precedent that had allowed military personnel to be convicted of aggravated assault solely on the basis of a positive HIV test, attorney Kevin McDermott said Tuesday. Gutierrez was not accused of infecting anyone with HIV.

Gutierrez could still be issued a bad conduct discharge, rather than the more severe dishonorable discharge that he had previously faced. In his appeal, Gutierrez challenged whether the risk to his sexual partners was high enough to constitute aggravated assault. Defense lawyers argued the risk of infection by an HIV-positive man during sexual intercourse with a woman ranged from a 1-in-10,000 to 1-in-100,000 chance per sexual encounter, which they contend is so low that it doesn't meet the legal standard for assault. Prosecutors countered that the exposure risk was closer to 1 in 500. The court concluded that even if the risk were 1 in 500, transmission of the disease was not "likely" to occur.

The airman has been imprisoned at Fort Leavenworth for almost five years and should be released shortly.

New York High Court Drops Felony Charge Against Man In HIV Exposure Case

Via the Associated Press:

An HIV-positive man who told a partner that they could safely have unprotected sex should face a misdemeanor reckless endangerment charge, not a felony, New York's highest court ruled Thursday. The Court of Appeals said Terrance Williams didn't expose his partner "out of any malevolent desire" to give him the virus that causes AIDS, though he lied about having the infection and his partner did get sick. The court said the Syracuse man didn't show "depraved indifference," which is necessary to support the felony charge. The judges declined to decide whether HIV infection no longer "creates a grave and unjustifiable risk of death" because of advances in medical treatment. Two lower courts had reached that conclusion while knocking down the felony indictment to the lesser charge. The felony could have sent Williams to prison for seven years. He still faces the misdemeanor and a possible year in jail if convicted.

Unlike many states, New York does not have a law that specifically criminalizes exposing others to HIV. The map below is from the CDC.

Lambda Legal: End HIV Criminalization

Via press release:

On World AIDS Day 2014, Lambda Legal urges those tasked with enforcing U.S. criminal law - from governors to prosecutors to police detectives - to halt the criminal prosecution of people based on their HIV status, thereby assisting efforts to combat the misconceptions, fear, stereotypes, discrimination and stigma faced by people living with HIV that fuel the epidemic in the U.S. and around the world.

HIV criminalization is a striking example of how misinformation, stereotypes and unfounded fears affect people living with HIV and of the government engaging in discrimination that perpetuates these stigmatizing messages. Imposing unjustified and unnecessary criminal prohibitions on people with HIV has led to a society where people are - among other forms of oppression - imprisoned, classified as felons and forced to register as sex offenders, based on outdated and inaccurate information regarding HIV.

We have not come nearly far enough in educating the public about HIV and in reducing stigma and discrimination. Fear and ignorance about HIV and discrimination against people living with HIV remains a serious problem that both marginalizes people and poses barriers to treatment and care.

Lambda Legal remains committed to securing equal protection and equal rights for this community - because living with HIV is not a crime. Lambda Legal's commitment to fighting HIV and AIDS stigma and discrimination began more than twenty-five years ago in 1983 when we filed the nation's first challenge to AIDS discrimination and helped secure a court order stopping the efforts of neighbors to evict a doctor from his offices because he treated HIV-positive patients.

That commitment remains strong today. People living with HIV have a right to work and live free from discrimination, and laws, policies and other governmental actions should be based on sound science rather than fear and bias.

RELATED:  In June, Lambda Legal won a case before the Iowa Supreme Court which reversed the conviction of an HIV+ man who had initially been sentenced to 25 years in prison for not disclosing his status before having a one-time sexual encounter during which he used a condom. The ruling came one month of Iowa reformed its laws on infectious disease exposure and transmission. Deliberate intent to infect the other person must now be proven.

IOWA: State Supreme Court Reverses Conviction In HIV Criminalization Case

Via press release from Lambda Legal:

Today the Iowa Supreme Court set aside the conviction of Nick Rhoades, an HIV-positive Iowan who was initially sentenced to 25 years in prison, with required registration as a sex offender, after having a one-time sexual encounter with another man during which they used a condom. In reversing the conviction, the Court recognized that HIV-positive individuals who have a reduced viral load as a result of effective treatment pose little risk of transmitting HIV. “We applaud the Court for applying the law in light of current medical understanding of how HIV is and is not transmitted,” said Christopher Clark, Counsel for Lambda Legal. “An individual who takes precautions to prevent transmission should not be considered a criminal for choosing to be sexually active, and we are very pleased that the Court agrees.” Justice Wiggins wrote for the majority opinion: “Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person.”

RELATED: Last month Iowa reformed its laws on infectious disease exposure and transmission. Deliberate intent to infect the other person must now be proven.

Iowa Reforms HIV Criminalization Law

Yesterday the Iowa House approved a bill that reforms draconian HIV transmission laws. The bill was approved by the state Senate in February. Current Iowa law makes it a felony to expose someone to HIV without their knowledge whether or not transmission takes place or if condoms had been used.

The Iowa Legislature has sent to the governor a measure lessening the penalties for people who unknowingly expose someone to HIV with no intention of infecting them. The House in the early morning hours Thursday passed a version of the bill the Senate had approved in February. The Legislature worked overtime to adjourn for the year passing the bill at around 2 a.m. The bill changes a current law that says if someone exposes a partner to HIV without their consent, they can be convicted of a felony punishable by up to 25 years in prison. It creates more general rules about infectious diseases, making people eligible for 25 year sentences only if they intend to transmit a disease without someone’s knowledge.

One Iowa reacts via press release:

"After 5 long years of fighting to change Iowa's law, those of us living in Iowa with HIV and AIDS can finally breathe a sigh of relief," said Tami Haught, Community Organizer with CHAIN. "We commend the leadership in the Senate and the House for understanding the importance of this bill and the need to modernize Iowa's draconian 709c law. None of this would be possible without the bipartisan support of Senators Matt McCoy, Steve Sodders, Charles Schneider and Rob Hogg; in addition to Representatives Beth Wessel-Kroeschell, Chris Hagenow and Chip Baltimore. The changes in this new bill are a step in the right direction. "While the bill that passed today will have a lasting and positive effect on the lives of many Iowans who currently live with HIV and AIDS in our state, our work is far from over," Haught added. "We must continue our outreach and education within the public sphere about the realties of those living with HIV, to dispel the harmful stereotypes, stigma and misinformation often associated with the disease. Our hope is that by beginning to modernize the laws in Iowa, it will signal other states with similar legislation to do the same. HIV is not a crime; our laws here in Iowa and across the country need to reflect this fact."

RELATED: In October 2013 the Iowa Court Of Appeals upheld the conviction of Nick Rhoades, a gay man who did not disclose his HIV+ status to a sex partner he met online in 2008. The other man, who did not become infected, called police after learning of the man's HIV status even though condoms were used during their encounter. At his trial, Rhoades pleaded guilty on the advice of his counsel at the time and was sentenced 25 years in prison and ordered to register as a sex offender. The sentence was suspended several months later and Rhoades was placed on five years of probation.

UPDATE: Lambda Legal writes to advise us that the Iowa Supreme Court heard a second appeal of Rhoades' case in March 2014. A ruling is expected very soon.

IOWA: Appeals Court Upholds Conviction Of Man Who Didn't Disclose HIV+ Status

The Iowa Court of Appeals today upheld the conviction of Nick Rhoades, a gay man who did not disclose his HIV+ status to a sex partner he met online in 2008. His partner, who did not become infected, called police after learning of the man's HIV status even though condoms were used during their encounter. At his trial, Rhoades pleaded guilty on the advice of his counsel at the time and was sentenced 25 years in prison and ordered to register as a sex offender. The sentence was suspended several months later and Rhoades was placed on five years of probation. Lambda Legal, who represented Rhoades in his appeal, reacts via press release:

"We're extremely disappointed that the Iowa Court of Appeals is allowing Mr. Rhoades's conviction to stand because it was based on a misinterpretation of the plain language of the statute," said Christopher Clark, Senior Staff Attorney for Lambda Legal. "Someone who engages in safe sex, as Nick did, does not have the intent required to support a conviction under Iowa's law concerning the criminal transmission of HIV. Lambda Legal will assist Nick in evaluating his current options, which include a request that the Iowa Supreme Court hear this case." Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges resulting in more than 160 prosecutions in the United States in the past four years. Among other things, HIV criminalization perpetuates the many myths and misconceptions that fuel other types of discrimination against people living with HIV. It sends an inaccurate message regarding prevention responsibility, creates a disincentive to getting tested, and may actually discourage disclosure of HIV status.

Read more about the case here.

HIV Decriminalization Bill Advances

Via Poz Magazine:

The U.S. House Appropriations Committee has passed an HIV criminalization amendment to a funding bill, according to a statement by the Sero Project. U.S. Representative Barbara Lee (D–Calif.) offered the amendment to the Commerce, Justice, Science Appropriations bill for fiscal year 2014. The amendment would require the attorney general to initiate a review of federal and state laws, policies and regulations regarding criminal and related civil cases involving people with HIV/AIDS. The amendment awaits a vote by the entire House of Representatives.

Rep. Barbara Lee Reintroduces Bill To Repeal HIV Criminalization Laws

Yesterday Rep. Barbara Lee reintroduced a bill that could eventually force the repeal of laws that criminalize exposing others to HIV.  Lee first introduced the bill in 2011.  Lambda Legal has issued a press release in support of the bill.

The REPEAL ("Repeal Existing Policies that Encourage and Allow Legal") HIV Discrimination Act calls for review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. If enacted, it would be the first piece of federal legislation to take on the issue of HIV criminalization, encouraging states to reconsider laws and practices that unfairly target people with HIV for consensual sex and conduct that poses no real risk of HIV transmission. The proposed bill is being met with widespread support, including endorsements from the National Alliance of State and Territorial AIDS Directors (NASTAD), the HIV Medicine Association (HIVMA), the Positive Justice Project, and AIDS United.

Thirty-four states and two U.S. territories now have laws that make "exposure" to or nondisclosure of HIV a crime. Though condom use significantly reduces the risk of HIV transmission, most HIV-specific laws do not consider condom use a mitigating factor or as evidence that the person did not intend to transmit HIV. Sentences imposed on people convicted of HIV-specific offenses can range from 10-30 years, even in the absence of intent to transmit HIV, actual transmission, or even the potential for transmission. Though most convictions are based on consensual sexual activity between adults, those convicted are often required to register as "sex offenders."

Lambda Legal has a case pending before the Iowa Supreme Court in which they are seeking to overturn the 25-year sentence of an HIV+ man who used a condom during a single sexual encounter in which there was no HIV transmission.

Presidential AIDS Council Calls For Repeal Of HIV Criminalization Laws

Earlier this month the Presidential Advisory Council On HIV/AIDS passed a resolution calling for the federal government to help states repeal HIV criminalization laws. (I missed this story when it first came out.)  Todd Heywood reports at American Independent:

While the resolution is only advisory, it recommends that the departments of Justice and Health and Human Services issue guidance and offer incentives to state attorneys general and state health departments to eliminate HIV-specific laws. The advisory group also asks these federal agencies to develop guidelines for how to approach HIV within criminal and civil justice systems that are “consistent with the treatment of similar health and safety risks.” PACHA is also requesting that state and federal authorities review the cases of persons convicted under such laws and overturn convictions if deemed appropriate. The group is calling on the Centers for Disease Control and Prevention to “issue a clear statement addressing the growing evidence that HIV criminalization and punishments are counterproductive and undermine current HIV testing and prevention priorities.”

Here's the text of the resolution.

People living with HIV have been charged under aggravated assault, attempted murder, and even bioterrorism statutes, and they face more severe penalties because law enforcement, prosecutors, courts, and legislators continue to view and characterize people living with HIV and their bodily fluids as inherently dangerous, even as ‘deadly weapons. Punishments imposed for non-disclosure of HIV status, exposure, or HIV transmission are grossly out of proportion to the actual harm inflicted and reinforce the fear and stigma associated with HIV. Public health leaders and global policy makers agree that HIV criminalization is unjust, bad public health policy and is fueling the epidemic rather than reducing it.

Heywood notes that 32 states presently have laws that criminalize the transmission of HIV. In some cases, HIV+ people have been convicted even when no transmission occurred. 

RELATED: Last month Heywood questioned the story of Here Comes Honey Boo Boo cast member Lee Thompson (Uncle Poodle),  who told an Atlanta gay newspaper that he had a former boyfriend prosecuted and sent to prison for five years after being infected by him. No court records of any such case have yet been found. Heywood has posted a blistering follow-up to the story.

[B]ased on all the evidence we have before us now, I have come to the conclusion that Lee “Uncle Poodle” Thompson has lied. I believe he did so because it was easier than accepting responsibility for his own behaviors and actions. I believe that Thompson lied because his own internalized stigma and fear of HIV left him with the false choice of telling the truth and being demonized for getting infected when “he should have known better,” or creating a perpetrator to blame it on in order to avoid responsibility. It’s a lot easier to place blame on some one else than it is to accept responsibility for yourself and your own actions.

Honey Boo Boo is nominated for a 2013 GLAAD Media Award due to Thompson's presence as an out gay cast member. Thompson wants GLAAD to get the truth from Thompson or withdraw the nomination. The show has broken viewership records for TLC, but ratings have sagged in recent weeks.

ACT UP Reacts To Uncle Poodle Story

Earlier this week investigative reporter Todd Heywood raised questions about Here Comes Honey Boo Boo cast member Lee Thompson (known on the show as Uncle Poodle), who claims to have had a former boyfriend sent to prison for five years for infecting him with HIV.

Today ACT UP responded to the story via press release.

While it's unfortunate that Thompson became HIV+, pressing charges against his ex-boyfriend in criminal court makes it sound like he was solely responsible for Thompson's infection and therefore is criminal for mishandling that responsibility.  Sex between consenting adults is a shared decision, and the responsibility for protection against disease should not be borne by one person (ie the HIV+ person). Placing sole responsibility on one person undermines the reality that every person should take responsibility for his/her own sexual health.

Criminal outcomes like this don't encourage people to get tested and know their status. They further marginalize a community that's already misrepresented in the media. While it's morally right to know and disclose your status to your partners, status and disclosure can't effectively be legislated in a court. Increasing sex education and access to testing will help create an environment where people want to know and disclose their HIV status instead of fearing legal retribution for it.

Currently, US Congressman Barbara Lee has sponsored a bill called the Repeal HIV Discrimination Act that would require a review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. This bill will go a long way toward rectifying the outdated practices of criminalizing those with HIV and handing down severe sentences based on outdated information about the virus.

Is Uncle Poodle Lying About Sending His HIV+ Former Boyfriend To Prison?

Last week the gay blogosphere erupted into divisive discussions upon the news that Here Comes Honey Boo Boo cast member Lee Thompson (who is known on the show as Uncle Poodle) is claiming that he had his former boyfriend charged with HIV transmission and sent to prison for five years after learning that he himself is HIV-positive in May of last year.  Thompson's story raised red flags for American Independent investigative reporter Todd Heywood, who closely tracks HIV criminalization cases nationwide.

Today Heywood writes on his blog, Viral Apartheid:

Because Thompson does not name the ex-boyfriend, and entertainment blogs about the show and Thompson are mum on the identity of the ex-boyfriend, I spent the last week calling district attorneys and law enforcement in Georgia and Alabama trying to find out where this prosecution happened. Not a single district attorney or law enforcement official I spoke with could find a case to match the facts presented by Thompson, nor could they find a case in which Thompson was the named defendant.

Does that mean Thompson lied? Not necessarily, but it does raise serious questions. First, Thompson lives in Alabama, where, according to Lambda Legal, transmission of HIV is a Class C Misdemeanor punishable by no more than 90 days in jail and/or a $500 fine. Lambda reports Georgia’s law is a felony punishable by up to 10 years in prison. It is unclear where Thompson lived in May of 2012, so I inquired with law enforcement and district attorneys in both states and in every county I could identify as linked to the show and Thompson’s family. It is conceivable that Thompson’s case was adjudicated in another county in Georgia, but very, very unlikely that case was conducted in Alabama.

Heywood also has a problem with Thompson's timeline:

Thompson indicates that by Jan. 10, 2013 (when the interview was published on Fenuxe) that his ex-partner had been investigated, charged, adjudicated and sentenced. Presuming for a moment that he tested positive on May 1, 2012, that means the entire criminal justice process was completed in 7 months. That just doesn’t fit with the most recent statistics related to time from arrest to sentencing from the U.S. Department of Justice.

Heywood adds that publicists for the show have refused to comment on the story. In a phone call to me last week, Heywood also pointed out that Here Comes Honey Boo Boo has been nominated for a 2013 GLAAD Media Award.

Read Todd Heywood's full article.

DISCLOSURE: Heywood is an acquaintance of mine and was my hotel roommate at last year's Netroots Nation convention in Rhode Island.

Honey Boo Boo's Uncle Poodle Sent His Boyfriend To Prison For Giving Him HIV

Here Comes Honey Boo Boo cast member Lee Thompson, who is known on the show as Uncle Poodle and who gained praise last year for being out on the program, has revealed that he had his former boyfriend charged with HIV transmission after learning that he himself was HIV-positive last year.

I was adamant about getting my HIV status checked on a regular basis. On March 16, 2012, I tested negative. Then, in May of 2012 my test results came back positive. I knew it had been my boyfriend who infected me. I later learned he had been HIV positive and was not taking medication and had not bothered to tell me about it. I was advised that I should press charges and, hesitantly, I did. It was the right thing to do. He is serving a 5-year sentence. I would have been cool with his HIV status if he had been honest. I don’t have an issue with the disease. I would have known how to protect myself.

In the above-linked article Thompson goes on to denounce barebackers as "damn fools" but makes no revelation as to how he was infected.

RELATED: The decriminalization of HIV transmission has long been a goal of many HIV/AIDS activists.  Last year the Global Commission on HIV & The Law issued a United Nations-sponsored report that called for exactly that.  Also last summer Todd Heywood reported that HIV criminalization laws cause some men to never get tested at all.