From ColorLines magazine
By Kai Wright
Garry Wayne Carriker had a pretty promising life ahead of him. He’d graduated from the Air Force Academy back in 2001 and at age 26 was prepared to graduate from Emory University’s prestigious medical school this past spring. He probably never dreamed he’d instead spend most of the year sitting in an Atlanta jail. But at summer’s end, that’s just where he was, awaiting trial on three counts of a sex-crime that could get him 30 years behind bars.
Carriker’s not a rapist or a child molester, but many consider his alleged crime equally horrific. The Atlanta attorney who is representing one of Carriker’s seeming victims in a civil suit compared his actions to “shooting bullets into the crowd.” Carriker is charged with having consensual sex with a guy he was casually dating without telling the man he is HIV positive. He was arrested and released on bond, but then two additional men came forward with similar charges. So a judge locked him back up, where he remained at this article’s writing.
Publicly, it’s still unclear when or how Carriker found out he was positive. It’s also unclear exactly what sex acts he and his boyfriend, John Withrow, engaged in together, or if they used protection when doing anything in which HIV could have been transmitted. Not that any of those details matter much to the law. Nor does it matter that Withrow never actually contracted HIV. All that matters is that Carriker had sex without telling. In Georgia, as well as in dozens of other states, that’s a prosecutable offense.
Carriker, who is white, is the latest in what has been a steady, if small, stream of such prosecutions across the country since the late 1980s. They represent the extreme end of a once-derided perspective that is gaining considerable currency in the world of HIV prevention. With the U.S. epidemic larger -and blacker -than it’s ever been, the growing consensus among health officials and community activists alike is that the only way to stop the virus’ spread is to control the behavior of those who already have it.
An increasingly popular quip bouncing around the halls of AIDS conferences sums up the new zeitgeist. Every instance of HIV transmission, one knowingly remarks, involves someone who’s HIV positive. This truism ignores its corollary: There’s always a negative person in the mix, too.
From tuberculosis to syphilis, Western public health has long employed a straightforward and largely successful formula to controlling communicable diseases: find the carriers, treat them, determine who they may have already infected and repeat. Confine those who can’t or won’t cooperate. Why not adopt this “screen and treat” approach to HIV? Science can’t expunge the virus from folks’ bodies, but it can suppress it to low enough levels that it’s harder to transmit. And there’s at least some research that shows people who are engaged in treatment are less likely to do things to risk exposing others to the virus.
But HIV has never been just another communicable disease; it’s passed on by used needles and sex, often of the taboo sort, be it between men or just outside of marital monogamy. So for years, HIV prevention considered the complicated emotions that drive sexual behavior, from the quest for intimacy to the urge for adventure, to be far too layered for single-bullet solutions. Health educators held transmission’s duality as their guiding principle-it takes two to do the AIDS tango-and crafted campaigns that urged every individual to take personal responsibility for his or her own health.
But after 25 years of this approach, the epidemic is still raging out of control. In June, the U.S. Centers for Disease Control and Prevention announced that more people are now living with HIV than ever before-over a million, with an estimated 40,000 new infections a year. African Americans account for just under half of those already infected and over half of new infections each year. In a shocking CDC study also released in June, researchers found 46 percent of the black homosexual and bisexual men they tested in five major cities were infected. Indeed, no matter how you chop up the numbers-by gender, sexuality, geography-African Americans in particular and Latinos to a lesser extent are now the predominant face of HIV.
So as the epidemic grows more entwined with the fabric of our lives, those who have been tasked with stopping it have grown terribly frustrated. At a packed public forum in New York City this March, convened in response to local health officials’ announcement of a potential new and virulent strain of HIV (which has since proven nonexistent), the anger in the voices of AIDS veterans was palpable. Tokes Osubu, executive director of the New York-based group Gay Men of African Descent, articulated why. “My anger stems from seeing that someone in his mid-40s, who had seen the devastation of the 80s and 90s, [became HIV positive] in 2004. That made me extremely angry,” Osubu somberly admitted, “and angry because I thought that as a provider [of AIDS services] I had failed.”
Those sort of haunting doubts have driven HIV prevention veterans to reconsider the traditional public health tools they once shunned.
Policing and Prevention
Western efforts at disease control have been firmly rooted in paternalism and policing from their inception. The German doctor Johann Peter Frank first spelled out the state’s responsibility-and authority-for maintaining a healthy citizenry in a series of groundbreaking, turn-of-the-19th century volumes, aptly titled A System of Complete Medical Police. It was a soup-to-nuts guide on what people needed to do to stay healthy, and how the state should encourage that behavior. Predictably, moralism was a recurring theme-one infamous section urged local officials to place time limits on dances that seemed too erotic, like the waltz.
That top-down perspective on prevention has persisted, and it informed government’s initial response to HIV. Washington had just begun noticing AIDS’ decade-old carnage when, in 1990, Congress passed the Ryan White CARE Act, which is now the federal government’s primary vehicle for funding AIDS services. Lawmakers included a provision demanding that every state have a criminal code that allows it to prosecute a person’s failure to disclose an HIV diagnosis to someone who may be put at risk by it.
The resulting state laws vary greatly in both form and severity, but they fall roughly into three categories: those that specifically criminalize the failure to disclose an HIV infection; those that enhance penalties to existing crimes-prostitution, rape, assault-when the person charged is positive; and those that simply use general laws like assault to prosecute “intentional” attempts to infect someone with HIV. According to the HIV Criminal Law & Policy Project, as of 2000, 24 states had laws that directly address situations like Carriker’s, in which a person fails to disclose his or her status before sex. Sentence enhancements are on the books in 15 states, most of which also have specific disclosure laws.
The laws, according to a review done by scholars at the Center for AIDS Prevention Studies at University of California San Francisco, largely require simply that the positive partner in a sex act was aware of his or her status and didn’t reveal it. Transmission is not required by any state, and using a condom gets you off the hook in only two. The penalties get as high as a life sentence, such as in Washington State, but are typically in the range of 7-15 years per count, such as the Georgia law Carriker faces. A handful of states raise the prosecutorial bar, adding that the person must have had harmful intent to be guilty of a crime.
Because the cases are difficult to win-you must prove something did not happen, and usually do it without witnesses-actual prosecutions are rare and seem to come in only slam-dunks. The HIV Criminal Law & Policy Project reviewed legal and media databases from 1986 to 2001 and found evidence of just 316 prosecutions-in 80 percent of which the defendants were convicted.
But prosecution isn’t really the point. Supportive lawmakers believe they don’t need to lock up every potential offender, just send a scary enough message to make them think twice about having sex without disclosing. Problem is, no research whatsoever exists to show these laws and their messages actually aid prevention. To the contrary, there’s plenty reason to believe they hurt it.
Does Targeting Positive Folks Work?
Many people would agree that someone who knowingly sets out to infect others with a communicable disease needs to be confined from society. But HIV’s epidemiology suggests the primary reason people who are positive have unprotected sex or share needles with others is that they don’t know they’re positive.
CDC estimates a quarter of those living with HIV don’t know it. African Americans particularly are operating blind: In the June study on black gay men, two-thirds of those who tested positive were unaware of their infection at the study’s outset.
There are myriad reasons for black folks’ reluctance to get tested-we don’t think we’re at risk, don’t trust healthcare providers, don’t even have healthcare providers. But many people working in black and Latino communities say the real problem is one that targeting positive folks worsens.
“The answer, at least partially, is stigma,” Latino Commission on AIDS Executive Director Dennis DeLeon told the March New York City forum. “Stigma associated with even taking an AIDS test. The stigma associated with going to medical care once you learn about your HIV status. These stigmas are very heightened in people of color communities,” DeLeon warned, adding, “I have not seen enough” work on that fact.
Keith Folger, director of programs for the National Association of People With AIDS (NAPWA), adds that the focus on forced disclosure also does little to address the epidemic’s driving forces. “Just because I tell you I’m positive, that doesn’t mean that we’re going to behave differently” when having sex, he notes.
NAPWA has long advocated for prevention efforts targeting people who are positive, but only as part of a larger suite of work and combined with efforts to reduce the stigma that drives many into the HIV closet. “There are so many reasons not to disclose, it just can’t be the only answer,” Folger argues. “What if negative people said, ‘I just refuse to be the receptive partner in sex without a condom?’ We say it’s a shared responsibility.”
Ultimately, for all the talk about sending messages to people who are positive, the real message of criminalization laws may be to everyone else: this troubling and complicated epidemic isn’t your problem, it’s that of monstrous outsiders who we can simply wall off from regular folks’ lives. It is perhaps telling that the highest-profile and most aggressively pursued prosecutions have featured America’s most recurring monster fantasy-young black men from urban areas who were having sex with young white women in rural areas.
In 2004, a black man named Anthony Whitfield in Washington State faced 137 years in prison for, as his public defender put it to the Seattle Weekly, “spreading AIDS to a bunch of white women.” Seventeen women accused Whitfield of having sex with them without disclosing. In 2002, prosecutors in Huron, South Dakota locked up black college freshman Nikko Briteramos, a Chicagoan who had just come to the small, largely white town on a basketball scholarship, for having sex with his white girlfriend without disclosing. He’d tested positive just a few weeks before the sex act.
But Nushawn Williams remains the unlucky poster child of the HIV criminalization movement. Williams was a 20-year-old, black Brooklynite who had relocated to a small, economically-depressed and largely white town in upstate New York to exploit its wide-open crack market. Williams commuted back and forth to New York City, and once, while in jail there on an auto theft charge, he tested HIV positive. He received no counseling or support in learning how to live with his infection. Nevertheless, he readily gave health workers the names of the 20 or so women around the state with whom he’d recently had sex.
As is routine, caseworkers tracked the women down over the course of a year, and four tested positive. Meanwhile, six women whom he hadn’t named tested positive when they went for exams without having been summoned. County health officials noticed that these women included Williams in their own partner-notification lists. So they declared an emergency, had confidentiality laws waived and put up posters that both identified Williams and encouraged anyone who had had sex with him, or even had had sex with someone who had sex with him, to come in for a test. In the ensuing national media spectacle Williams was called everything from the “devil” to “boogeyman incarnate” to “super infector”-a riff on the then-popular “super predator” caricature for young, urban black men.
This August, news reports from tiny Milford, Iowa, suggested it may host the next installment in this series. Police there had just locked up Dewayne Boyd, a black man in the largely white town, charging Boyd with having had sex with four women-including his wife-without disclosing his HIV infection. As one resident told the Des Moines Register, “What bothers me is that people are saying, ‘It’s that black guy.'”
A Slippery Slope
The CDC has plunged into this volatile atmosphere with an aggressive new initiative it is calling “Advancing HIV Prevention.” In 2003, the government announced that their prevention money would now be focused on campaigns that seek to first identify and then alter the behavior of positive people. That means more testing campaigns, but it also means emboldened partner notification programs-in which people who test positive are pushed to reveal their sex partners and aid the health department in tracking them down.
Very few of those in the mainstream AIDS community who support this invigorated focus on the behavior of positive people also stand behind HIV criminalization laws. But critics of the new CDC initiative warn that, when handled poorly, it’s a slippery slope from “targeted prevention” to the sort of plain scapegoating those laws represent.
NAPWA’s Folger worries that, while the CDC’s emphasis on testing is important, the agency’s push to make it “routine” — or, just part of any hospital or doctor’s office visit — is ill-advised as long as the strong stigma associated with the virus remains. Just learning your HIV status, he notes, appears to change behavior in the long term, but in the short term it can be catastrophic if the person isn’t prepared for that knowledge. A not untypical reaction is that of Williams and Briteramos: to simply choose denial, ignore the diagnosis and go on with life as usual, thereby becoming a criminal.
Folger also questions the genuineness of Washington’s commitment, given that Congress is now considering a funding cut for prevention and continues to undermine proven methods for stopping the virus’ spread. “One of the most effective forms of prevention for positives, our federal government refuses to fund,” he scoffs, “and that is needle exchange.” A longstanding law forbids any federal money to be used for such programs.
To Folger, any real effort to encourage safety among positive folks needs to come from the bottom up and focus on helping rather than policing them. “You ask those of us living with HIV, ‘What messages work?’ Is it a women’s group that teaches women to use female condoms, so that their partners don’t even know that they’re having safe sex?” he posits. “You start with the infected population and say, ‘What do you think it is that will work for you?'”