A call for the eradication of HIV criminalization

By Martez Smith – The HuffingtonPost

You are not to touch other flesh
without a police permit.
You have no privacy –
the State wants to seize your bed
and sleep with you.
The State wants to control
your sexuality, your birth rate,
your passion.
The message is clear:
your penis, your vagina,
your testicles, your womb,
your anus, your orgasm,
these belong to the State.
You are not to touch yourself
or be familiar with ecstasy.
The erogenous zones
are not demilitarized.
– Excerpt from The Occupied Territories by Essex Hemphill

As I recite these lines to myself in a friend’s bedroom, I think about HIV criminalization in relation to Black futures. I ponder the possibilities we have as Black bodies are wading the waters drifting us slowly but surely upstream to social, sexual, gender, economic and all forms of liberation for that matter. Can we afford to remain silent about HIV criminalization without compromising our commitment to working towards Black liberation? It is certainly a question of riveting depths, but I will briefly provide my insight.

Someone engages in a sexual encounter with a regular sex partner. Both parties get tested on a regular basis and both of their latest HIV tests were negative. Shortly after this encounter, one of the consenting parties is diagnosed with HIV. This scenario is not unheard of, seeing that the majority of individuals who transmit the virus are unaware of their infection (especially young gay men between the ages of 18-24). From that point on, depending upon state laws, this person could face criminal charges for failing to disclose their HIV status to a sexual partner – even if the sexual behavior places the uninfected party at little to no risk for contracting HIV. For people living with HIV who may struggle with accepting their diagnosis, those living with mental health diagnoses and/or other (dis)abilities, there is now a surplus of fuel to add to the fire.

Take, for example, the case of Michael “Tiger Mandingo” Johnson. A 24-year-old Black man with dyslexia, Johnson was the star of the Lindenwood University wrestling team near St. Louis, Missouri. Johnson was admired for his charming personality, God-like biceps, and sexual appeal. Last but certainly not least, Johnson identified as gay. In the words of Steven Thrasher, the intersectionality of these characteristics – queer, black, disabled, and hypersexualized – made Johnson the perfect scapegoat for HIV in an environment where the virus was typically ignored . Johnson was sentenced to 30 years in prison for “recklessly infecting” one of his sexual partners and putting four additional men at risk for contracting the virus. Johnson’s mother stated, “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.” Furthermore, Johnson himself stated, “I told people I was HIV [positive] … and they wanted me anyway, because of who I am.” These quotes point to a lack of accountability on behalf of the state for ensuring adequate education on HIV criminalization laws as well as a lack of accountability on behalf of the individuals who decided to engage in unprotected sex with Johnson regardless of disclosure.

We are living in an era with a multitude of tools available to prevent HIV transmission. These tools can be utilized by individuals who are living with and without HIV. Pre-Exposure Prophylaxis (PrEP), a once daily antiretroviral regimen for people living without HIV, has demonstrated high effectiveness at preventing HIV infections. People living with HIV who are adherent to antiretroviral medications and maintain undetectable levels of the virus in their bodies have a very low chance of transmitting HIV to their sexual partners. Despite these scientific advances, people living with HIV still face a challenging dilemma: stigmatizing themselves upon disclosure versus state punishment as a consequence of nondisclosure. For the sex worker living with HIV, livelihood is called into question. Disclosure may result in a decrease in clientele, possibly diminishing one’s earnings. For all people living with HIV the threat of psychological, physical, and spiritual violence as a result of HIV criminalization and stigma is continual.

Targeting Black, Brown, HIV positive, and queer bodies, laws regulating disclosure of personal information – specifically HIV – serve as a regulatory tactic to perpetuate stigma and fear. We must remember that access to narratives is a real thing in 2016. When we advocate for (or fail to advocate for the abolition of) HIV criminalization laws, we are actively making a decision to outcast our Black family members who do not have access to proclaiming their HIV status in safe and affirming environments. If we are going to be invested in getting free as a people, the eradication of HIV criminalization laws must be something we are simultaneously invested in.

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