In late December 2018, Michigan joined the growing list of U.S. states that in recent years have softened outdated and punitive laws criminalizing people for having sex without disclosing their HIV status. Prior to Michigan’s change, if a person knew they were HIV positive and did not tell their sexual partner so before “sexual penetration” occurred, they could be charged with a felony carrying up to four years in prison. “Sexual penetration” was defined as including any entry, “however slight,” into the vagina, anus, or mouth. Prosecutors did not need to prove that HIV transmission occurred—or, in fact, that it even could have occurred given the act in question. (For example, there is almost zero evidence that oral sex can transmit HIV.)
The changes, the result of efforts from HIV advocates, narrowed the punishable sex acts to anal or vaginal penetration; retained the felony charge if the person with HIV fails to disclose “with the specific intent” of transmitting HIV (a high bar to prove) or does not disclose and actually transmits HIV, regardless of intent; dropped charges to a misdemeanor if the person does not disclose and does not transmit, yet still acts “with reckless disregard” (which is highly open to interpretation); and said that proof of the person with HIV being on meds with an undetectable viral load and hence unable to transmit could be a point for the defense.
Generally, Michigan’s HIV criminalization makeover resembles those in about nine other states in recent years, taking felony charges off the table in instances where it appears transmission did not occur, where there’s no proof that the person with HIV maliciously intended to transmit, or where there is proof that the person was consistently on HIV meds with undetectable virus on labs, and hence unable to transmit. (The exception is Illinois, which recently repealed HIV felony charges entirely.)
Yet despite Michigan’s changes, in June, a Lansing, Michigan, man (whose name has been withheld from local news stories) was sentenced to six months in prison for allegedly transmitting HIV to a woman in 2018, when he was 41 and she was 29. His case illustrates how, even in an era where HIV criminalization laws are being softened and prosecutors and judges are sometimes more educated and thoughtful about the realities of HIV transmission, people with HIV can still be ensnared in such laws.
What Went Wrong?
Let’s start with this chain of events, some of it taken verbatim from a June 16 story in Michigan’s Lansing City Pulse by longtime reporter Todd Heywood, who is himself openly gay and HIV positive:
In Lansing in 2018, a man, 41, and a woman, 29, started having sex, then moved in together. In January 2019, the woman tested positive for HIV in a routine screening at a plasma donation center and the following month attempted suicide as a result of the diagnosis, court records show.
“While at Sparrow Hospital in Lansing for mental health treatment, the woman claimed to have asked her boyfriend if he was HIV positive and he did not answer, records state. When asked again by hospital staff, she also claimed that the man “slammed a door” in a doctor’s face.
“Four days later, she filed a complaint with the Lansing Police Department.
“A felony charge of knowingly engaging in sexual penetration “however slight” without disclosing his HIV status was levied against the man in late 2020. He was arrested in February. In March, he waived his preliminary examination. In May, he pleaded guilty under a deal with [the office of county prosecutor Carol Siemon] to serve a cap of six months in jail.” That’s despite the fact that Siemon, widely considered to be progressive-minded, has recently called HIV criminalization laws “discriminatory” and “fear based” and ordered a review of past cases for possible dismissal.
On June 22, the man was sentenced to spend the next six months in Ingham County’s jail.
How did it all happen? For one thing, it’s important to understand that, because the alleged transmission took place in 2018, the man was charged retroactively under the old law, with its much lower bar to apply felony charges.
Secondly, according to prosecutor Siemon, who replied to TheBody in a lengthy email, this case was extreme because it appeared that the man knew his HIV status, did not disclose it, and not only exposed the woman to HIV multiple times but gave it to her. This is the entirety of Siemon’s reply to TheBody:
This is the only HIV transmission case I have prosecuted in my nearly five years in office. The defendant engaged in very egregious acts. He had untreated HIV for over a decade; he did not disclose to the victim his status before they moved in together; he engaged in unprotected sex with her scores of times over months; she contracted HIV from him and, as a result of her diagnosis, attempted suicide; and (despite the inferences in the articles [by Heywood in Pulse, see links below]) the evidence about this was compelling. With full legal representation (including his attorney consulting with HIV legal experts), the defendant pled guilty and entered the plea with the agreement that he would serve six months in jail.
I definitely favor a public health response for HIV and other diseases and, as a decades-long ally, would not intentionally stigmatize someone who has HIV. This is not that situation. If I had been aware of this case at the time I made those comments to [reporter] Todd Heywood, I would have framed the issue more carefully. Todd Heywood and I had a number of email exchanges over the weekend and on that Monday I learned of this case and that the defendant had pled guilty and was being sentenced within the week. We shared that new (to me) information with Mr. Heywood immediately. We did more research and I reached out to the defense attorney to ensure that this prosecution was not of the fear-based and discriminatory nature I deplore.
Due to the date when the transmission occurred (2018) falling under the OLD law (which was Draconian and stigmatizing), we had to charge under the old law, but the investigation and evidence followed the very stringent criteria of the new law. For example, under the old law (which I was referring to in my comments), the mere fact that someone was HIV positive and had sex with someone without disclosing to their partner was a legal basis to criminally charge, even if HIV was not actually transmitted or the individual was on anti-viral drugs with a non-transmittable amount of the virus. That law indeed was discriminatory and fear-based.
In 2018, the Michigan legislature revised the HIV transmission law, with support and endorsement from many in the LGBTQ community (including the bill’s sponsor, Rep. Jon Hoadley, a gay man and chief author of the bill) and HIV patient advocates. That law was passed in the last days of the 2018 legislature and took effect in 2019. The two earlier charges under the old statute, of which I was aware when I communicated with Mr. Heywood, were each dismissed by the Ingham County Prosecutor’s Office; one dismissal (involving a 1999 open warrant) occurred recently, and the other occurred under a previous prosecutor’s administration (in 2015).
Similar to very old cases of criminal charges for knowing/reckless transmission of tuberculosis, for example, there are times when one’s behavior is so reckless and egregious that a criminal justice response was appropriate. I believe in this unique circumstance when his behavior was indeed criminal, a criminal justice system response was appropriate. I hope that we never have a case of this nature again. With our excellent local public health officials, numerous private, free opportunities to be tested and treated, and a local community that was devastated by the HIV/AIDS epidemic in the 1980s and responded by creating numerous programs and services, this situation should not have occurred.
This was a tragic situation for all involved. The victim, luckily, is now in treatment. I believe that the defendant has now also engaged in treatment. The victim in this case suffered, and continues to suffer, as a result of the defendant’s reckless conduct. In the law, it’s possible to hold two principles simultaneously and prosecutors have to make decisions when those principles are in conflict with one another. In times when principles contradict one another, it’s necessary to balance those beliefs and make a decision about which one is paramount. In this particular case, I believe the conduct of the defendant was particularly irresponsible. I believe that our office made the right call, and stand behind that decision.
Holes in That Argument?
TheBody showed Siemon’s response to Jake Distel, the (soon-to-leave) executive director of Lansing Area AIDS Network (who noted that his comments are his own and do not reflect the agency), and attorney Jay Kaplan, the longtime head of the Michigan ACLU’s LGBT Project (who was not, it should be noted, the defendant’s attorney on the case). Both have spoken out with their concerns about the case.
“I find the prosecutor’s response very thoughtful and considered,” replied Distel. “To be frank, her response has provided me a better understanding of the considerations in this case and, perhaps, the rationale for her need to prosecute. It appears that the representation provided the defendant was both credible and thoughtful.”
And Kaplan wrote: “I would concur with Jake. I also was not aware that on the advice of his attorney that he had plead guilty. It’s not for me to second guess the legal advice that he was given, nor how they considered the evidence that was being presented. I agree that the prosecutor provided a thoughtful, considered approach.”
But Heywood, the reporter, sees many flaws in Siemon’s argument and still finds the sentencing problematic. For one thing, he claims from reading court documents related to the case (that TheBody did not see) that the prosecution was based not on hard medical evidence that the man had HIV but on testimony from his mother (and later, once he took a plea, from his own mouth).
“The warrant for his arrest never should have been issued because it was based on a hearsay statement” of his status, says Heywood, plus merely “an assumption” that he gave the accuser HIV. There is no scientific way to prove that Person A gave HIV to Person B; however, a process called molecular surveillance can suggest transmission by showing that Person A’s particular HIV molecular structure is similar to Person B’s. The process is controversial among HIV activists; TheBody is not sure, however, if the process was used in this case.
“If they don’t have evidence that he’s HIV positive, then they don’t have evidence that he knew his own status,” Heywood continues. “And yet he was arrested and charged.”
Secondly, says Heywood, it’s troubling that when, during the sentencing, it was requested that the defendant be allowed to serve his six months via house release at his family’s home, the judge said, “Frankly, I don’t think we want him back in the community,” as though he were an HIV super-spreading predator.
Thirdly, aside from what he calls flaws in the arrest and charges, Heywood points out that, as is often disproportionately true in HIV criminalization cases, the man is Black. “And the accuser is a white woman. It’s a racial dynamic where he’s been hypersexualized. We wouldn’t have seen this case if he’d been a white middle-class man.” In the sentencing, the man’s lawyer, Jacob Sartz (who did not reply to queries from TheBody), said that his client had been “in a very dark place” during the events in question but was now sober and was sorry for his actions.
And finally, says Heywood, Siemon’s office could have chosen not to prosecute at several junctures—“when it came forward for a warrant, after he was arrested, even before they went with a plea deal”—and instead run the case through the county public health codes, which still would have allowed the plaintiff to pursue a civil action as a “health threat to others.”
Heywood says he got no reply from Siemon on all these points. Neither did TheBody when it followed up with her on these points after receiving her initial statement—which says, after all, that she found this the rare extreme case that warranted prosecution.
“Despite well-meaning progressive prosecutors—and I do think Siemon is a good person who is big on restorative justice—the stigma of HIV remains, and it plays out by painting people with HIV who are sexual as being dangerous,” says Heywood. “Especially if there are racial dynamics involved.”
So there is the story of how a man with HIV is doing six months in jail despite Michigan having nearly completely de-felonized its HIV criminalization laws, a major goal of HIV activists. Again, it’s a unique story because the man was prosecuted retroactively under the old law—and because it appears that transmission actually occurred, which is not always or even often so in such cases. Still, the case shows that laws criminalizing people with HIV for having sex, and the 1980s and ’90s–era stigma and fear that drove those laws, cast a long shadow to crawl out from, even when they are softened.