Legally, in most states, you could. You can take them to court and have them sent to prison, possibly for decades. It's called "criminal transmission," and though the laws are enforced only sporadically — 316 times between 1986 and 2001, according to a University of Connecticut study — they've sent people like Anthony Whitfield away for life.
A broad-shouldered African-American with a shaved head and a striking, easy smile, Whitfield repeatedly circumnavigated the Olympia, Washington nightclub circuit throughout his twenties. "Everyone was into the club thing," he says. "Drugs and drinking, swapping partners — we partied." He did crystal meth and swept through sexual partners, sometimes more than one per night. Sometimes he used condoms; other times, he didn't. What he didn't tell any of his partners was that he had been diagnosed as HIV-positive. (Whitfield tells Hooksexup he thought he was clean, though records show he'd tested positive after a prison rape in Oklahoma in 1992.) So in 2003, when several women in Olympia were diagnosed with HIV and Whitfield's name popped up as the common denominator, the authorities got involved.
Whitfield was ordered by the city to inform all future partners of his HIV status, to report their names to the health department regularly and to always use protection. But he continued sleeping around, not telling his partners about his status, not using condoms, not checking in with the authorities. More women reported his activities. In early 2004, the police showed up at his home in the nearby town of Lacey. He was arrested and charged with criminally exposing others to HIV.
"It's been beaten into my head since fifth grade, the risks of unprotected sex," says Whitfield, now one of 2,500 inmates at Monroe Correctional Complex thirty miles north of Seattle. "I never raped anyone. I never took any sex from a woman forcefully. It was always consensual. If you asked me to wear a condom and I didn't want to wear one, you could just say no. By having sex with me without a condom, you're assuming the risk of whatever I have."
To Whitfield, it's that simple: if he has sex with a woman and she doesn't insist on a condom, that's her decision. If she contracts HIV, that's unfortunate but not his fault. But to the state of Washington, Whitfield's actions amounted to a felony. The state charged him with seventeen counts of first-degree sexual assault. During an eight-day trial, several of the women he'd slept with took the stand to testify against him. Whitfield was convicted and, four days before Christmas, sentenced to 178 years in prison — a life sentence with no chance for parole.
Washington is one of thirty-four states with laws that make it a crime to transmit HIV, or in some cases simply potentially expose another person the virus, according to Lambda Legal's website.
The penalties range in severity from Class A felony (the most serious charge there is, encompassing murder, rape and kidnapping) to misdemeanor, and they're all over the map regarding what constitutes "exposure." In some states, it makes no difference whether a condom was used or not, or whether the defendant actually became infected. For those prosecuted under the laws — which are enforced rarely, erratically and, as some critics argue, selectively — whether you end up sentenced to community service or a life term can depend largely on luck.
At the heart of Whitfield's case and dozens like his is the question of who is responsible for the transmission of HIV: the infected person who transmits it, or the recipient who didn't use or demand adequate protection. Many legislators are deciding it's the former.
Advocates of the laws say not telling a partner that you're HIV-positive is like driving drunk or firing a gun into a crowd — though there may be no intent to harm anyone specific, the recklessness of the act makes it a crime in and of itself. One Iowa judge recently went even further, calling a twenty-three-year-old defendant's failure to inform his partner about his HIV status "akin to attempted murder" before sentencing him to twenty-five years.
But making a virus legally indistinguishable from a handgun raises difficult questions. For one thing, the likelihood of transmitting HIV even in the most reckless of sexual acts is far lower than the likelihood of killing someone by firing a gun or driving drunk, yet the prison sentences under many
criminal-transmission laws are far harsher than they are for those offenses. "The highest risk of transmission — unprotected receptive anal sex — is less than one percent. Unprotected receptive vaginal sex, maybe less than one-tenth of one percent. And unprotected oral sex, maybe one in about every 2,500 acts," says Catherine Hanssens, executive director of the Center for HIV Law and Policy. "The risk is nowhere near the analogies that are offered."
Adds Hanssens: "most of the laws don't even take into consideration whether someone uses a condom. The greatest risk I've described to you is less than one percent. You put a condom around that risk, and if the condom works you reduce it to practically zero."
No one argues that it's okay for people with HIV to lie about their status. But in terms of severity of penalty, why the harsher sentences for potentially exposing someone to HIV than for attempted murder? Hanssens believes a mixture of politics and moralism is the reason. "You get to be tough on crime without actually having to invest any money in it. It's also code for being tough on homosexuals and drug users."
Whitfield's penalty was especially severe. His prison has four levels of security: minimum, medium, "closed custody" and maximum. Whitfield lives in the closed-custody section — a much higher-security block than most non-violent offenders, because he was convicted under sex-offender laws. "The penitentiary I'm in caters to rapists, child molesters," he says.
Critics contend the laws are also problematic because they have the potential to prevent people from getting tested; Regan Hoffman, editor-in-chief of Poz magazine, points out, "If you don't know your status, you can't be imprisoned for non-disclosure." Of the 40,000 new HIV infections that have occurred annually in the U.S. over the past four years, approximately half have come from the quarter of a million people who don't know they have HIV.
Because of this, Hoffman believes that the laws are, at best, ineffective in the short term, and at worst, will actually thwart the fight against the disease in the long term.
"One of the best ways to ensure widespread discussion of HIV and disclosure is to destigmatize the disease," she says. "Herpes, once something no one would talk about in polite conversation, is now the subject of commercials on prime-time TV. If we can similarly evolve the public's thinking about HIV so that it is easier to discuss without those that have it fearing stigmatization, rejection, marginalization, discrimination or criminal prosecution, we'd increase the chance that people would feel more inclined to talk about it openly."
The data suggests she's right. Since herpes was brought out into the open, talked about on family-hour television ads for Valtrex and discussed by the Today Show's medical editor, the number of Americans testing positive for the virus dropped by nearly twenty percent.
And then there's the sticky issue of putting the power of prosecution into the hands of jilted lovers. "It wasn't even about the transmission," Whitfield says of the women who testified against him. "It was about the fact that they weren't the only girl in my life. They were mad that I was sleeping with all these other women."
Whitfield doesn't dispute that he infected these women, but he argues that their testimony against him was tainted by their jealousy over his philandering. In Washington, exposing someone to HIV is only a crime if there was "intent to inflict." In other words, the prosecution had to prove that Whitfield actually wanted to infect his partners with HIV — a fairly high legal threshold. But the prosecutor cleared that threshold with the testimony of Whitfield's ex-girlfriends.
"One woman said to the prosecution that she thought if I had it, I would try to give it to as many people as I could," he says. "She said, 'I remember Tony saying if he had it he would give it to as many fuckers as he could.' They got her to say it and that got me convicted. That gave me 'intent.'"
When Whitfield first arrived at Monroe prison, everyone knew exactly who he was.
"Anybody who didn't know, I don't know where they were in 2004," he says, referring to the media saturation of his trial. Because of this, he was initially shunned by the other prisoners. Two years on, he says he's not treated any differently. "The news made me out to be this hideous thing, going out and intentionally screwing these chicks. But what [the media] never said is that I had a history with some of them, a couple of them all the way back to '97 or '96. I had relationships with five or six of these women."
Whitfield is still legally married to one of the women he infected, a Russian woman who visits him in prison about once a month. He also has four children (by his wife and other women) whom he says are HIV-negative. "I see them once in a while, if they show up."
And because his wife and all of the women who testified against him are white, Whitfield, an African-American, believes the tone of the trial was inflamed by racial bias. Though there's no way to prove Whitfield's race was a factor in his prosecution, a study of the case by Seattle Weekly found that black men are indeed prosecuted disproportionately for criminal transmission of HIV. Nationwide, approximately half of criminal-transmission cases have black male defendants. In Washington State, it's two out of three.
"If I was white, I wouldn't be talking to you on the phone right now," he says. "Everybody said that, even my attorney. Johnny Cochran said on TV that he wouldn't even try a case in Washington, that's how bad it is. If you're black in Washington, nine times out of ten you're going to the penitentiary."
But with seventeen accusers testifying against him, and an unknown number of other women out there who did not take the stand, Whitfield's charges of racial bias do seem like an act of desperation. At least part of the support for the laws comes from the ominous specter of the HIV-positive predator who intentionally infects as many people as possible, according to Poz editor Hoffman, but that criminal is essentially nonexistent.
"The myth of the HIV predator is just that: a myth," she says. "It is true that there are a few ill-intentioned individuals who have wielded HIV as a deadly weapon, and their stories have gotten much exposure in the media, giving the erroneous impression that people with HIV are monsters out to infect a guileless, innocent public. The reality is that few people living with HIV would wish it on their worst enemy."
But what about someone like Whitfield, who may not have been intentionally infecting women, but was certainly acting with reckless disregard for their wellbeing. Where does the line separating intent and indifference begin to blur?
This is where the issue becomes the kind of complex ethical conundrum that doesn't fit well into laws proposed by state legislators who are trying to make their records "tough on crime." For Hoffman, it comes down to personal responsibility: it's a dangerous world, and the answer is not to throw people in prison, but to make stopping the spread of AIDS the responsibility of both those who are positive and those who are negative.
"I believe that all people living with HIV who are aware of their HIV-positive status should disclose their HIV-positive status to their sexual partners 100% of the time," says Hoffman, who is HIV-positive herself. "I also believe that the responsibility for practicing safe sex lies in the hands of every individual engaging in sex, regardless of their HIV-positive status or that of their partner . . . People with HIV who know they have the virus should always be open and honest about their HIV status, and at the same time, anyone who engages in sex should make it their responsibility to protect themselves each and every time they have sex, and if they choose not to, they should not solely blame their partner for any adverse outcome."
In Arkansas, it's a felony to use a dildo on someone without first telling them you're HIV-positive. In Iowa, exposure is defined only as "intimate contact" with no further clarification. And in Indiana, "A person who knowingly or intentionally in a rude, an insolent, or an angry manner places human blood, semen, urine or fecal waste on another person" has committed a felony if that substance has HIV in it. In some states, spitting while HIV-positive is illegal.
As a result of the randomness, the laws have ensnared people engaged in extremely low-risk activities, and can be applied selectively by local prosecutors who might be more interested in enforcing morality than in statistics about transmission rates. One apparent example of this occurred in Georgia last year, when a fourth-year med student in Atlanta named Garry Wayne Carriker was sentenced to ten years in prison for having oral sex with another man while HIV-positive. When a reporter from the Southern Voice, a gay newspaper, asked the prosecutor whether Carriker had given or received the blowjob (a significant distinction — the CDC names no documented cases of HIV transmission to anyone who has received a blowjob), the prosecutor cringed and said, "I didn't get into those kinds of details."
A similar case took place a few thousand miles to the west, in a town called Pahrump, Nevada, where a thirty-two-year-old substitute teacher named Brian Lepley was convicted of performing oral sex on a teenager in 1997 without disclosing his HIV-positive status.
Pahrump, population 25,000, is an isolated, conservative community nestled in the desert sixty miles west of Las Vegas. RV dealers line the main commercial strip, and a shooting range offers family classes in proper gun operation. Its biggest celebrity is Art Bell, Sr., the founder of a popular syndicated radio talk show about paranormal activities.
The teenager Lepley orally serviced was Art Bell's son, sixteen-year-old Art Bell Jr. (In Nevada, age sixteen is the age of legal consent).
Lepley would occasionally get beer and weed for Bell Jr. and his friends, one of whom was eighteen-year-old Stephan Ellison. They'd all go down to a local pond at night to get high and go skinny-dipping. One night, while driving Bell home, Lepley asked him if he could give him a blowjob. Bell said yes, though in the subsequent trial he said that he wouldn't have consented had he not been drunk and stoned. Lepley performed oral sex on Bell in his car while parked on a deserted road.
Lepley also had two sexual encounters with Bell's friend Ellison, whom he'd met in a college psychology class they were taking. Ellison later testified in court that he and Lepley had had anal sex twice, once with a condom and once without (Lepley insists he always used protection). Ellison also said that he was unaware of Lepley's HIV status, though in his statement to the police upon Lepley's arrest, he wrote down that Lepley "told me he had HIV but not AIDS."
Ultimately, Bell and Ellison testified against Lepley on charges of sexual assault and criminal transmission of HIV (both of them tested negative for the virus). From court transcripts provided by Lepley, it seems the case rested almost solely on Bell's testimony against him. Under questioning from the defense attorney, Bell even seems to admit that he'd been coached by a lawyer to say that he was "scared" the night that Lepley gave him the blowjob in the car.
"Someone got me to believe that that was the right thing to say," said Bell when cross-examined by the defense. "One of the lawyers."
Herein lies a significant problem with the laws, as Hoffman points out.
"Given that the 'crime' in question . . . takes place in private between individuals in an intimate setting, the facts surrounding any incidence of transmission of HIV, or any potential exposure to HIV, are nearly impossible to prove (as often, there are no witnesses to the events in question), and often come down to a 'he said, she said,' 'he said, he said,' or 'she said, she said' situation. Even if one person supposedly infects another, it is difficult to prove that that person was the source of the infection (the person who contracted the virus could have had other partners during or since the time that the infection supposedly occurred.)"
Finally, since the case essentially relied on Bell's account of what happened, one has to wonder if, living in such a small and conservative community, Bell felt it necessary to publicly disassociate himself from Lepley because of homophobia.
Before the trial, Bell's mother had found a letter her son had written to his girlfriend admitting that he'd hooked up with Lepley. In the letter, Bell seems to imply that he enjoyed the encounter, calling it "fun." Toward the end of his testimony, the defense asked Bell if he had decided to report Lepley to the authorities because his parents had found out about their tryst. "Are you afraid of your dad?" the defense attorney asked Bell.
"No," was Bell's response.
"And you didn't report this as a rape because you were afraid that your father would find out you were gay?" the defense attorney asked.
"No," Bell responded again.
Lepley was convicted and received a sentence of ten years to life. Now forty-one, he's housed in a medium-security wing of Northern Nevada Correctional Center in Carson City.
Though Lepley was diagnosed as HIV-positive nearly twenty years ago, he's what's known as a long-term non-progressor; his T-cell counts are high and his viral load remains undetectable. Yet as a prisoner with HIV, he says he faces "ignorance, hatred, stigma — in prison, there is no education program teaching transmission, spread, treatment or prevention," he wrote to me in a letter (his warden felt that a phone interview would be "too disruptive").
Lepley spends his days teaching Spanish to the other inmates. He's also trying to "convert" to heterosexuality as a Jehovah's Witness. "I have four Bible studies and a field-service ministry," he writes. "I study the Bible every day." He keeps in close touch with his adoptive mother, and hasn't spoken with Art Bell Jr. or Stephan Ellison since the end of the trial. Though he's up for parole in 2008, he believes he will not be released. "Let's be realistic," he writes. "I will continue to be a minister and will pioneer."
Should anyone at all be prosecuted for exposing others to HIV? Do the Brian Lepleys, who engage in virtually no-risk behavior, deserve to be prosecuted? Or only the Anthony Whitfields, who go condomless with their ignorant partners? Or not even the Whitfields? Where's the line?
For the HIV-negative, being unwittingly exposed to the virus can turn a normally empathetic bleeding heart into a prosecutorial hardliner. Poz magazine's recent story on criminal-transmission laws jumpstarted an impassioned debate on the website of gay activist Keith Boykin — not exactly a hotbed of conservative commentary. While his readers argued back and forth in the comments section, someone under the handle "Chris" jumped into the fray.
"I just learned today that I am HIV-positive," wrote Chris. "Of course, I am hurt, but I am crushed by the fact that the person who gave it to me knew that he had it and did not tell me. We practiced safe sex, and I even asked him if he had it. HE LIED! I don't know how, but I contracted the disease from him.
"I feel that a person has the right to determine whether or not he or she wants to be intimate with someone who is HIV-positive," Chris continued. "No one has the right to play with a person's life. You'd better believe that the guy who infected me will be prosecuted." n°
©2007 Will Doig and hooksexup.com