Sanjay Johnson (Courtesy of Sanjay Johnson)
The early interactions between Sanjay Johnson and Jamal "Doe" (a pseudonym) might sound familiar to many gay men across the United States. In separate interviews with TheBody, the Little Rock residents described how they exchanged messages on the hook-up app Jack'd in October 2015, then met at Johnson's apartment for a one-night stand.
"He messaged me and was like, 'Hey, what's up, do you want to come over?'" said Doe, 21, who was an 18-year-old freshman studying sociology at the University of Central Arkansas in 2015. "After we had sex, we talked for a few moments, and then I left."
Johnson was 22 years old at the time of the encounter and has similar memories. "There was no trying to vibe or anything, we just got to it. Once we were done, he left and that was it."
The young men didn't maintain contact after that night, but they reconnected about a year and a half later, at which time they learned each other's names and a friendship developed.
"We started hanging out, not trying to pursue a relationship, not anything sexual, just genuinely hanging out," Johnson, now 25, said. "We went out to a couple of movies together, maybe ate out once or twice, and he hung out over my house."
Doe fondly recalled his growing bond with Johnson. "Sanjay was someone I considered a friend because we spent so much time together," he said.
However, the next interaction between the two men is expected to be in a Pulaski County courtroom in early October, when Doe is scheduled to testify on behalf of the state of Arkansas as it attempts to send Johnson to jail for up to 30 years, a sentence equivalent to that for negligent homicide.
"That's Not Me, I Wouldn't Do That"
On Aug. 9, 2017, Johnson received a call from a Little Rock detective asking him to come in for questioning related to allegations that he had sex with someone without first disclosing that he was HIV positive. Alarmed and convinced he would be arrested if he went to the police station, Johnson reached out to Cheryl Maples, the mother of a friend and an attorney who has worked on LGBT issues in Arkansas, including challenging the state's ban on same-sex marriage. The next morning, around the time Johnson would usually be getting ready for his job as an operator at a hospital appointment center, police arrived at his apartment with a warrant and took him into custody.
Doe was among the 314 new HIV diagnoses in Arkansas in 2016, the most recent year of available data. (Arkansas ranks 30th among states in HIV prevalence.) According to an Arkansas law enacted in 1989, "[a] person commits the offense of exposing another person to [HIV] if the person knows he or she has tested positive for [HIV] and exposes another person to [HIV] infection through ... sexual penetration with another person without first having informed the other person of the presence of [HIV]." Johnson is one of about a dozen Little Rock residents to be charged under this HIV disclosure law within the last five years, and if found guilty of the Class A felony at his Oct. 4 trial, he faces between six and 30 years in prison.
"That was my first time ever being in the legal system," Johnson recalled about the week he spent in the Pulaski County jail in August 2017. "When I got out, I experienced every emotion you could feel, good and bad: [I felt] fear; I try to make myself feel happy; [I was also] sad, very angry, depressed, you know, anxious, calm -- basically I had no choice but to feel everything.
"The next day, my mug shot was plastered all over social media," he said. "Of course, with the charges, with people not wanting to dig into the story to find out what's going on, they just saw what was in front of them and left evil, nasty comments. They see the mug shot and what the charges are, and they automatically think that I'm just passing it around, and it makes me so angry, because y'all don't know the situation or anything. Y'all just going based off what you see and don't even know the details of this story. Thankfully, people who actually knew me, like family and friends, knew that's not me; I wouldn't do that."
The initial meeting between Johnson and Doe was too brief and unremarkable for Johnson to remember the details three years later, and he is unsure whether the two discussed HIV status or safer sex prior to their encounter.
"Honestly, no, I do not [remember]," Johnson said. "That was three years ago, just a one-time hook-up. All those important details that are important when you're having sex with someone, I don't remember them."
Still, Johnson is convinced he did not pass the virus to Doe, and court records show that within a week of their encounter, Johnson's viral load was undetectable. As part of an emerging scientific consensus about how HIV is spread, the U.S. Centers for Disease Control and Prevention (CDC) confirmed last fall that HIV-positive individuals who "maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV-negative partner."
"Sanjay Johnson could not have passed on and exposed anyone to this virus due to his medical condition; therefore, he cannot be guilty of this particular statute," said Maples, Johnson's attorney. "Sanjay deserves his fair day in court, but there's a law the state of Arkansas has, and he may never get it."
Arkansas is one of 34 states that have specific criminal laws on HIV-disclosure, and there is growing advocacy to have these laws -- some of which criminalize the spit and urine of HIV-positive individuals, despite neither of these bodily fluids being a carrier for the disease -- repealed or amended to catch up to modern science.
"They're really the norm rather than the exception," said Kate Boulton, a staff attorney at the Center for HIV Law and Policy, a national group that tracks legal developments and advocates for reforming of HIV criminal laws. "Many of the states passed these laws in the early days of the epidemic and have not really revisited them since," she said.
While advocates have helped amend these laws in states such as California, Iowa, Colorado, and North Carolina, neither Arkansas legislators nor the legal arena seems receptive to arguments that the laws are unscientific. Prosecutors have argued in legal pleadings that Johnson and other HIV-positive individuals remain "a public health threat," and claimed the CDC has "walked back" its assertion that being undetectable equals being untransmittable.
"The CDC warned that 'these data can't statistically rule out the possibility that the true risk is not zero,'" Michael Cantrell, assistant solicitor general in the Arkansas attorney general's office, wrote in response to a motion to dismiss filed by Maples. However, the same CDC statement Cantrell cited notes: "The statement reflects the fact that there have been no linked infections observed in studies among thousands of sexually active HIV-discordant couples engaging in female-male and male-male sex without a condom or [pre-exposure prophylaxis] while the HIV-positive person is virally suppressed."
The prosecutors' strategy and language, specifically labeling Johnson a "public health threat," have Johnson supporters worried as he readies for a jury trial.
"That kind of characterization is unfounded and needs to be addressed," said Cornelius Mabin, who has known Johnson for about a decade and started a fundraising effort for Johnson's legal defense. "The way he was being characterized and the way this is being framed, to me, it ignored medical facts about the current realities of HIV transmission and care."
Mabin is also the founder and CEO of the non-profit Arkansas RAPPS, and based on his longtime work in HIV/AIDS advocacy, he fears the average juror's understanding of the disease is as outdated as the state's disclosure law.
"[The average juror is] certainly not able to discern undetectable and/or virally suppressed, probably not knowing what those terms are and never hearing those terms," Mabin said. "Also, just the general stigma, homophobia, and fear that continue to exist. Even when I'm out lecturing or doing workshops, I continue to hear so much misinformation, especially from people who I would think would have more aptitude, and I would think would be more learned about it -- and that would include some clinicians."
During a June hearing on Maples's motion to dismiss, Nathaniel Smith, M.D., M.P.H., director of the Arkansas Department of Public Health and Sanjay Johnson's personal physician, testified that Johnson was undetectable during his sexual encounter with Doe, and he offered the mounting evidence that someone who is undetectable cannot pass the virus along to others. Pulaski County Circuit Judge Leon Johnson was unconvinced.
"The state really did not put on any evidence at all at that hearing, and we had real solid testimony," Maples said. "The prosecutors got the words out of the mouth of the doctor that even though there's no cases showing you can catch it from someone who is undetectable, there is this teeny-tiny possibility, and the judge grabbed that and said there's a possibility, and ruled against us."