April 21, 2011
Tracy asks sexual partners to sign a contract before getting intimate. Photo by Julie Turkewitz for Housing Works.
For Tracy Johnson, 22 and HIV-positive, romance often begins at a karaoke bar. There's music, conversation and innocent touching. He's at ease until it's time for the first kiss -- that's when he leans in, pulls out the document and asks the object of his affection to sign, indicating he's shared that he has HIV.
That piece of paper, he believes, could save him from years behind bars if a partner ever alleges that he didn't disclose his status. He carries it everywhere.
"I was scared," said Johnson, a medical assistant and motivational speaker from Cleveland. He typed up the document after seeing a string of media reports about judges throwing HIV-positive Ohio residents into prison for non-disclosure. "I'm young, I don't want to go to jail, so I want to cover myself at all angles."
State laws that penalize non-disclosure of HIV status to a sex partner have become increasingly worrisome to people living with the virus. Since 2008, there have been more than 100 HIV-related prosecutions in the United States, according to the Center for HIV Law and Policy. Punishments range from a fine to up to 40 years in prison.
As a result, people like Johnson, who found out he was HIV-positive at age 15, are desperately seeking ways to document that they have disclosed their status to a partner.
Johnson's Ohio is particularly prone to punishing people for non-disclosure. It's a felony there to engage in any sex act -- that includes partner play with sex toys -- before telling a person you are HIV positive. Since 2008, police have made at least 27 arrests for not sharing HIV status. One Ohio man is serving 40 years on charges of failing to tell his girlfriend he has HIV.
"I anticipate we will see more people using these documents," said Todd Heywood, a Michigan-based journalist who covers criminal cases involving HIV for the American Independent News Network. He's also HIV-positive. To guard against a partner who later claims he never shared his status, Heywood saves internet chats where he's spoken about his HIV.
"Most of us are caring, law-abiding human beings who want to be good citizens. So we're stuck in that rock and hard place, where we have to figure out, 'How do I prove I didn't break that law?' ... It really is bizarre what we have to go through to protect ourselves."
Sean Strub, the founder of POZ magazine, has been interviewing HIV-positive people since 1983. Increasingly, he said, he's hearing of people who make conscious efforts to document disclosure. They save a chat string or include their HIV status in an online dating profile. Others bring a partner to doctor's appointment to demonstrate the partner knows about his or her status.
It's unclear, however, if any of these measures would hold up in court to prove an individual has shared HIV status.
René Bennett-Carlson is an attorney at the Center for HIV Law and Policy. She knows of at least one case where documentation saved a man from prosecution: He was able to present police with text messages demonstrating his partner knew he had HIV.
But she has yet to see a case where an HIV-positive person presented a contract like Johnson's, proving he'd disclosed his status. While she said it's "logical" that a court would accept such a contract, she can't be certain.
Heywood has been watching HIV non-disclosure cases closely, and he said there's no guarantee Johnson's document protects him. A third party is not present to witness the signing. A prosecutor could, therefore, allege that the document was forged or that the sexual partner was under the influence during the act.
Individuals across the U.S. are at risk for prosecution: 34 states have laws that specifically punish not sharing HIV status before sex, and the U.S. prosecutes more HIV-positive people than any other country in the world.
Laws that punish non-disclosure of HIV status are typically put in place by public health officials seeking to prevent the spread of the virus. In practice, however, these laws undermine public health, discouraging testing and exacerbating stigma. They've been condemned by a wide range of human rights and health organizations, including the United Nations High Commissioner for Human Rights. The President's own National HIV/AIDS Strategy calls for a serious review of their efficacy.
These laws also make HIV-positive people extremely vulnerable to criminal prosecution. When a partner accuses an person of not disclosing, the HIV-positive individual has just one defense: Provide some proof of disclosure.
But most discussions about sexually transmitted diseases occur in private, and proof of disclosure is sometimes impossible to produce. Once a relationship goes sour, HIV-positive people can be at the mercy of embittered partners who can go to police to claim they didn't know a person's status.
While there's no definitive way to protect oneself from criminal prosecution, Bennett-Carlson is urging people to document HIV disclosure in every way possible.
"This is the reality in our criminal justice system, unfortunately," she said. "I think what Tracy's doing is very interesting, and with these criminal prosecutions like they are, maybe more people will start having others sign contracts."
Heywood is entertaining a more permanent way to prove he shared his HIV status. "I half joke about getting a bio hazard tattoo in my tramp stamp area," he said. "Just so I could stand up in court and say, 'How could he miss it?'"