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After 30 years, Missouri reforms HIV transmission criminalization law

Six years ago, then-college student Michael Johnson was sentenced to 30 years in prison by a St. Charles County judge for “recklessly exposing” his sexual partners to HIV.

Five and a half years into that sentence, he was released in 2019 after outcry about his case brought a national spotlight to Missouri’s laws criminalizing HIV transmission. 

For 30 years, Missouri law considered many different actions as reckless exposure — even something as minor as spitting at someone while having HIV, though the virus is not transmitted through saliva.

“It was based on outdated science,” said Tony Rothert of the ACLU of Missouri, who filed a brief in the Johnson case.

“Doctors tell us that laws specifically targeting people living with HIV do not reduce the number of HIV cases, and in fact most HIV transmission takes place during consensual sex between two adults, neither of whom is aware that one or the other is living with HIV,” Rothert said. “So when we punish people who get tested and know their HIV status, it privileges those who remain ignorant, and discourages people from getting tested.”

This law, Rothert said, was in fact encouraging the further spread of HIV rather than discouraging it.

But in May, Missouri lawmakers voted to change that.

With the passage of Senate Bill 53, a wide-ranging police reform bill, the crime of “reckless exposure” of someone to HIV has been downgraded to a Class D felony from a Class B felony. The bill also increased the burden of proof for prosecutors, who now must prove someone “knowingly” exposed another person to the virus.

It also avoids singling out HIV as a uniquely dangerous or transmissible disease, and applies to all “serious infectious or communicable diseases,”  which reflects more current science rather than the AIDS panic of the 1980s. That means cases like Johnson’s — which Rothert describes as an innocent man sentenced to life for “being a gay Black man… and having the nerve to have sex” — are less likely to happen.

The law will go into effect Aug. 28.

This is the first time that HIV criminalization law has been changed in Missouri since the 1980s, and it’s the product of over a decade of organizing across the state. Four different versions of the bill were filed in four different legislative sessions before it was finally passed.

“While it’s a great step for Missouri to update this law, taking 30 years to do so is ridiculous,” Rothert said. “And if this had been an illness that touched the lives of the legislature more directly, it would’ve happened decades ago.” 

LaTrischa Miles of the Missouri HIV Justice Coalition has been in the fight for HIV decriminalization since 2011. 

Miles, who has been living with HIV since 1995, started that coalition with only one other woman out of Kansas City a decade ago. Now, though, their numbers have grown stronger, allied with groups such as the ACLU of Missouri, the Sero Project and Empower Missouri. 

Under the former law, someone convicted of reckless exposure could be sentenced to more time in prison than someone who commits involuntary manslaughter. That was true despite the fact that HIV has for decades been treatable, allowing people with HIV who are on appropriate treatment to have an average lifespan equal to that of the rest of the population.

Demario Richardson is a peer educator at KC Care, an organization that provides subsidized healthcare to underserved populations in Kansas City. He says his clients often avoid getting tested for HIV altogether out of fear that knowing their status might leave them vulnerable to conviction. 

“A lot of people who are positive don’t even know about the law,” he said. “And then they find out about the law when they’re either being prosecuted or being threatened [with prosecution]…if you spit in front of someone, that can be considered exposure.”

Mallory Rusch, executive director of the anti-poverty advocacy group Empower Missouri, said the previous HIV criminalization laws left open a great deal of opportunity for HIV-positive people to be abused by HIV-negative people.

“It could be like … if you don’t do this thing, I’ll say you recklessly exposed me,” she said. 

The charge, a class A felony, carried 15-30 years in prison. If someone said you exposed them and they didn’t contract it, it was still a class B felony, which is 5-15 years in prison “even when there was no tangible effect on the other person,” Rusch said.

Now, the burden of proof on the prosecution in these cases is higher, and the minimum sentence if someone is convicted is lower, at three years rather than 10.

Erise Williams, a longtime AIDS advocate in St. Louis, said that he hoped this legal change would create a renewed push towards knowing one’s HIV status.

“There was a sense of fear there, fear and trepidation, around to tell or not to tell,” Williams remembered. “Because this could mean going to jail, and in many cases going to jail for a very long time. It’s important that that dynamic changed.”

Many people wouldn’t get tested, he said, because “if I don’t get tested and I don’t know, then I can’t be held accountable.”

He hopes that with the new law, people will be more willing to get tested and to talk about their status without fear.

“I’m hoping it sets the atmosphere for more dialogue about HIV status,” Williams said. “Because we do know that if people are positive and they are in treatment, the risk of infecting other people has decreased tremendously. People are less infectious if they are on treatment.”

For LaTrischa Miles and the other members of the Missouri HIV Justice Coalition, though, the fight is not done. They hope to further lower the potential sentence for “reckless exposure” from a felony to a misdemeanor, and to eliminate a provision that is still on the books in which sex workers can be charged with higher sentences if they happen to have HIV.

“I wouldn’t say that everything is resolved,” Miles said, “because there’s still some things that we want to do, but we don’t have that same fear of prosecution that we had before.”

This article by Sophie Hurwitz is published by permission of The Missouri Independent.

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