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The Crime of Being HIV Positive

By Gregory Trotter

July 27, 2012

Monique Howell and her husband, Steven Moree, stand together in Washington, D.C. AFC photo: Gregory Trotter.

Monique Howell and her husband, Steven Moree, stand together in Washington, D.C. AFC photo: Gregory Trotter.

Two incriminating words branded the young Army clerk's honorable discharge paperwork.

Serious offense.

Monique Howell had not been found guilty of any crimes. But in May 2007, she was told she had 72 hours left in the United States military. Her discharge was considered honorable, but it certainly wasn't her choice. Indeed, she had planned to re-enlist. That would no longer be an option for her.

Howell had been charged with aggravated assault, a felony charge in military law for not disclosing her HIV-positive status before having unprotected sex with another soldier. After five months in court, the charges were dropped. But those two words would stay on her paperwork. For Howell, then a 26-year-old mother of three young children, the damage had been done.

"It made me feel like a criminal," said Howell, 31, of Summerville, S.C. "I could be nice one minute and about to kill myself the next."

Compared to some, Howell was lucky. Hundreds of Americans have been arraigned on charges of alleged nondisclosure of HIV statues or transmission of HIV and many have served time in jail -- most often in cases where HIV was not transmitted, experts say. Though laws vary by state, there are currently 33 states that criminalize HIV exposure, according to the Centers for Disease Control and Prevention.

HIV advocates and legal experts are trying to get these laws off the books, saying they do far more harm than good. The laws deliberately discriminate against a specific group of people, they lead to innocent people serving jail time, and are often based on an outdated understanding of how HIV is transmitted, said Sean Strub, director of the Sero Project, a nonprofit dedicated to ending such criminal prosecutions.

"These prosecutions are driving the epidemic," said Strub, interviewed at the International AIDS Conference in Washington, D.C., on Wednesday. "Everyone talks about stigma this, stigma that. What creates more stigma than the government enforcing laws that discriminate against one specific group of people?"

Howell did not know it was against the law to not disclose her HIV status, she said. A higher-ranking staff sergeant had paid her a visit at her house on the Army base in Fort Jackson, South Carolina.

One thing led to another. She asked him to wear a condom. The staff sergeant, charming and persistent, declined to do so, she said. Eventually, she relented, and they engaged in unprotected sex.

"I didn't know the laws, but I knew what I did was wrong," Howell said.

It's unclear how the staff sergeant became aware of her HIV-status, but Howell suspects he was told by other supervising officers to whom she had disclosed. She was soon thereafter called at her parents' house and ordered to report to the military police. She was facing 8-12 years in prison.


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Take the Test, Risk Arrest

You've seen the stories. The AIDS monster, the HIV predator, sits impassively in court as the television gravely explains the heinousness of the alleged crimes.

But legal experts and advocates in the HIV/AIDS field are banding together to repeal criminalization laws because they say such laws, conceived to stop the spread of HIV, are actually worsening the epidemic. For the first time, there is a coordinated national effort, called the Positive Justice Project, to stop HIV criminalization.

A look at some of the data is illuminating. Thirty-three states have HIV-specific statutes to cover behaviors such as sex, spitting, biting, needle sharing, organ/blood/semen donation and prostitution, according to the CDC, but HIV-positive people are prosecuted with felony charges -- such as aggravated assault -- in states, or under federal law, where there are no HIV-specific statutes.

Some of the laws are plainly archaic. Despite the fact that the risk of transmitting HIV through spitting and biting is virtually nil -- or negligible, according to the CDC -- 12 states and territories have HIV-specific spitting and biting laws, according to data compiled by the The Center for HIV Law & Policy.

(The law in Illinois was recently amended to not include biting or spitting, among other changes. Click here to read how the AIDS Foundation of Chicago recently led efforts to amend the law in Illinois.)

Actual transmission of HIV is rarely a factor in prosecutions, said Scott Schoettes, HIV project director for Lambda Legal.

"Overall these laws are ineffective because the criminal law is far too blunt of an instrument to deal with the variety, complexity and nuances of sexual relations between two consenting adults," Schoettes said in an email. "People's lives, emotions, and motivations are complicated; intimate relationships are complex and sometimes messy; and the "mating dance" in which we engage takes place on multiple levels, through a wide variety of verbal and non-verbal cues."

(Read a full Q&A with Schoettes on HIV criminalization laws.)


In Howell's case, the staff sergeant tested HIV-negative. She was brought to trial for not disclosing her HIV status, despite the fact that both parties consented to sex without a condom.

The simple fact is that it takes two to have protected sex, said Laurel Sprague, the Sero Project's principal investigator on its recent study. So, why should one person be sent to jail when both parties are responsible?

"I'm someone who just four years ago didn't see why criminalization was a problem," said Sprague, an HIV-positive woman. "My perspective has changed completely. ... Using the law in this way serves only to scapegoat people living with HIV."

In 11 states, a person found guilty of a HIV-specific crime must register as a sex offender. In other words, regardless of whether HIV was actually transmitted, a person could be labeled for the rest of his life as a sex offender, joining rapists and pedophiles in one of the most stigmatized social groups on the planet.

Like Howell, many people don't even know whether the law requires them to disclose their status with their sexual partners. The Sero Project surveyed more than 2,000 HIV-positive Americans on HIV criminalization issues. Almost two-thirds didn't know their state laws on the matter.

But the bombshell in the Sero study is this: One quarter of the respondents said they knew people who would not get tested for HIV for fear of ensuing prosecution. More than 40 percent of respondents felt that was reasonable.

Take the test, risk arrest, as the activist slogan goes.

In other words, criminalization causes more fear and stigma, which in turn causes people to not get tested, which in turn makes more HIV infections the likely outcome.


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Breaking the Silence

Old school soul music and coffee smells filled the room warmly. Howell finished up breakfast with her husband Steven in the stylish café at the Rouge Hotel in Washington, D.C.

They were in town for the International AIDS Conference, where Monique was advocating and telling her story. She was, by all appearances, happily married and doing well on her new career path: HIV advocacy.

"My kids are always like 'Momma's off saving the world again! She has to go save the world,' " Howell said, laughing.

She started a nonprofit organization called Monique's Hope for a Cure Outreach Services, located in Holly Hill, S.C., the same rural town where her father pastors a nondenominational church. She's had success telling her story and advocating in nearby schools. She strives to be a resource for the community.

"I try to just meet people where they're at," Howell said.

It wasn't an easy path. After her ordeal with the criminal trial, Howell was in and out of mental health care, she said, battling severe depression. Her resurrection aptly began in her father's church in 2009 when she stood up and told the entire congregation that she was HIV-positive and asked for their prayers.

"People started crying and embracing me," she said. "There was no program after that. That was the program."

In November 2009, she met Steven Moree, a soft-spoken former crane operator who did not shy away from Howell because of her status.

"It really didn't bother me," he said. "I had a little education on HIV, so I said 'OK, we can work with this.'"

Moree, who sat silently for an hour or so while Howell told her story, lit up while describing Howell's ability to connect with teens on the issue of HIV.

"I'm honored to stand behind her 100 percent," he said. "I'm amazed at how she can get down on their level. Anyone who can catch a teenager's attention like that, you're doing something special."

Howell hasn't yet had anyone in her community come out as HIV-positive to her. But she knows they're out there. The HIV/AIDS prevalence rate for Orangeburg County, where Monique's organization operates, is 565.8 per 100,000 people, according to the most recent statistics provided by the South Carolina Department of Public Health.

And Howell hopes in time to connect with them.

"A lot of people just keep the silence," she said. "So, how do we break that silence?"

Gregory Trotter can be reached at gtrotter@aidschicago.org.




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