Queer sex is still criminalized in The United States. Though same-sex and transgender sex acts are no longer unlawful in our society, per se, another kind of queerness is. The queerness of HIV is  stigmatized and literally criminalized throughout America via the persecution of consensual sex acts between an HIV positive person (someone with an HIV negative serostatus) and another as punishable by the criminal justice system.

The logistics are varied. Many states have HIV specific laws that are designed to enact punitive measures (i.e. felony charges, incarceration, etc.) onto HIV positive individuals for “exposing” HIV negative people to the possibility of transmission. Some states, like Louisiana and Ohio, additionally register sexually active HIV positive people as sex offenders if they are accused of nondisclosure. Some states, like New York, do not have HIV specific laws– yet there are general felony laws and/or communicable disease laws that often amount to HIV criminalization and disproportionately affect HIV positive people. The crux of this “exposure” is contingent on repeatedly rectifying the legally binding notion that a positive individual is obligated to disclose their status to a consensual sexual partner.

Blogger and assistant director of The Sero Project, Robert Suttle, perfectly sums up the nature of the problem in his think piece “The dehumanizing effect of HIV criminalization.”

“HIV may no longer be a death sentence, but for many black people and people from other disenfranchised communities, it is often a prison sentence. I found out the hard way, at 30 years old, when I was convicted under Louisiana’s so-called “Intentional Exposure to AIDS Virus” statute. I served six months in a Louisiana state prison for a consensual adult sexual relationship and it was never determined that I had transmitted HIV to anyone.
Louisiana, where I am from, has the highest incarceration rate in the nation. Black people, women, sex workers, men who have sex with men, people who use drugs, transgender women, migrants and LGBTQ youth — especially young black gay and bisexual men — are at a heightened risk of incarceration and at the highest risk of acquiring HIV. Both factors represent a terrible injustice, but when you add HIV criminalization, it becomes an injustice of historic proportions.”

Another particularly unjust and heartbreaking HIV criminalization case, which garnered national attention from activists, lawmakers, and journalists, began in 2013. In Missouri courts, Michael Johnson, a Black gay man and aspiring wrestler at Lindenwood University, was sentenced to thirty years in prison on the grounds of transmitting HIV to a sexual partner. This insidious sentence was reached after fellow (white) students accused Johnson of failing to disclose his HIV status to them before sexual intimacy. It should also be noted that the jury of his initial trial was completely self identified as straight and white– a sure sign  of what the systemic commingling of racism and queerphobia can look like for the fate of an HIV positive individual, especially when that individual is queer and Black.

Johnson later accepted a plea deal and the sentence was lowered to ten years. The case is still being tirelessly poured over, and worked through, by lawyers and activists and, hopefully, Johnson will be released much sooner than the end of his sentence. The logistic minutia pertinent to this case, the passion of people who have fought for Johnson, and Johnson’s own bravery deserves much more attention than I can give it here. A whole book could be devoted to what has happened and all of us who care should keep Johnson in our hearts as we await his return to society.

Stories like Johnson’s highlight the necessity that we all grow into a consciousness where we come to see HIV Criminalization laws as empty and violently oppressive tactics that systemically stigmatize and dehumanize HIV affected individuals. HIV affected communities already face discrimination (in housing and employment, for example) and this only compounds that discrimination.

Criminalizing HIV is both morally wrong and just illogical. Somewhere, sometime recently, an HIV activist (If only I remembered who it was!) said that “HIV is a social condition that we are all living under.” If we can accept this as true, then what does this say about intimacy and shared responsibility? How does this ask us to compassionately uphold a culture of mutuality, interpersonal safety, and equality? To dare to think pass criminalization, and to imagine HIV as a social condition we all share, must be a start.