Michigan’s HIV Disclosure Law: Overly Broad and Open to Abuse


BAY CITY – In early 1999, Michael S. Holder had just gotten out of
prison where he had been serving time for retail theft and burglary
since 1993. Although he was married, when a woman who was with a friend
of his sent him a drink at a bar the three were visiting, he took the
woman up on her offer.

The two became fast friends. So fast, in fact, by that spring, the
woman and Holder had moved in together, sharing an apartment in a
township just outside Bay City.

The two were intimate, sexually and emotionally connected.

In June 1999, the woman developed thrush, an infection of the mouth
associated with HIV infection. She also, according to court
transcripts, developed a rash on her body.

That relationship was rocky, with Holder saying it was on again and
off again for months. In 2000, when he was in jail awaiting charges
related to an allegation he was dealing drugs, the relationship went
from rocky to an alleged perpetrator-victim relationship. He was
accused of failing to tell his female friend that he was HIV positive
before they had sex. He was arraigned on the charge in July 2000.

Holder tested positive for the virus in 1993 when entering the state
prison in Jackson. At the time he was told his diagnosis, he said the
description of the state law mandating HIV-positive persons disclose
their status before engaging in sex, did not really apply to him.

"It never dawned on me," Holder, who was paroled in December, said in an interview.

The Holder case – complete with a cast that includes an admittedly
racially-biased jury, a scorned lover and a life-threatening virus
surrounded more by fear than fact – is only one example of several
prosecutions brought under a 1988 law that experts warn is overly broad
and open to abuse.

"It [the Michigan disclosure law] could be used vindictively against
populations that already stigmatized and that have experienced
discrimination against them on the basis of HIV status," said Lance
Gable, an associate professor of law at Wayne State University who
specializes in the intersection of the law and health care issues. "It
can also be used to prosecute people for engaging in common human
behavior."

Viral inequality: A history lesson

To understand Michigan’s disclosure law, one has to understand the
history behind the HIV epidemic. As documented in the prize-winning
book "And the Band Played On," by journalist Randy Shilts, HIV came to
the forefront of the American mind in the early 1980s when a group of
homosexual men began becoming sick from, and dying of, bizarre
infections normally associated with animals or aggressive forms of
usually non-aggressive cancers, such as Kaposi’s Sarcoma. The outbreak,
which eventually became known as the HIV epidemic, came at a time when
America was experiencing the birth of the religious right and was
skittering to the right politically under the leadership of President
Ronald Reagan. In fact, while the virus continued to claim lives,
spreading through the gay community, intravenous drug users and blood
recipients, the Reagan administration did virtually nothing.

The president himself did not mention the epidemic until 1987, when
he ordered the creation of the President’s Commission on the Human
Immuno-deficiency Virus Epidemic. That commission issued its final
report in 1988. Among the nearly 600 recommendations, was
recommendation 9-46. That recommendation encouraged states to pass
HIV-specific criminal statutes imposing an "affirmative" duty on those
infected with the virus to disclose their infection to sex partners.

From that recommendation, the Michigan legislature drew up MCL
333.5210, sexual penetration as felony. The law made it a felony to
know that a person was infected with HIV and engage in any sexual act
without first disclosing their HIV status to their partner. There is no
law in state codes criminalizing the sharing of a needle without
disclosure of HIV status.

Michigan’s Felony Disclosure Law was passed by the state legislature in 1988 and went into effect in 1989.

In 1990, the Ryan White Care Act
required states receiving federal funds for the assistance of those
impacted by HIV to certify the state had laws to prosecute HIV
transmission. By the time the bill was sent for reauthorization in
2000, this mandate was removed, because 32 states had passed laws
specific to HIV, and all 50 had certified they had criminal laws to
address HIV transmission.

HIV is the only virus with a felony attached to it in Michigan.
Those persons with human papillomaviruses, which have been linked to
cancers, herpes, Hepatitis B and C, and other viral or bacterial
infections are not required under state law to disclose their infection
to potential sexual partners.

Michigan v. Michael Steven Holder

Holder went on trial, accused of violating the state’s HIV
disclosure law in November 2001. Because the case was against a black
man accused of failing to disclose his HIV status to a white woman with
whom he was having a relationship, the court authorized the use of
juror questionnaires to evaluate prospective jurors. During jury
selection, five potential jurors were identified as having questionable
beliefs about inter-racial relationships through their juror surveys.
As a result they were put under oath and asked questions by the trial
judge.

One juror informed the court in her questionnaire that "black men
deal with hate or revenge with violence more so than other races." She
also told the judge that non-Caucasians committed more crime. That
juror told the judge this view would not impact her view of the case.

Another juror informed the court she "did not care for inter-racial
relationships," and that "a person should stay within their own race."
In response to the questionnaire question: "The defendant in this case
is a black man who is accused of having sex with a white woman without
telling her that he had the HIV virus. Based upon this information,
have you already formed an opinion about him and, if so, what is your
opinion?" Two of the jurors said they thought the accused was guilty,
with one writing:

"Yes. This is a deadly disease. He took her life into his hands by putting her at risk. He’s a horny coward."

A third juror wrote in her questionnaire response that if a person
was accused of a certain act, her response would be "I would say he is
guilty."

"Well, I feel that children would be a mixed breed," a fifth juror
told the court in explaining her discomfort with inter-racial
relationships. "It’s just some – I think they might suffer down the
road. Their children would be – don’t know if they’re – what breed they
really are!"

Despite the inter-racial relationship that was at the heart of the
case and the statements of pre-judgment, all five jurors were seated in
the case of Michigan v. Michael Steven Holder.

Holder’s defense attorney and the prosecutor stipulated to the first
element of the crime, that Holder knew he was HIV-positive. The
stipulation was made because investigators had obtained a document
signed by Holder in Jackson State Prison in 1993 which not only
acknowledged he was HIV positive, but that he was aware of the
disclosure law.

Holder’s ex-girlfriend had testified in a preliminary hearing in
August 2000, and once again during trial, that Holder did not inform
her of his HIV-positive status. In fact, she claimed, he had denied
rumors that he had AIDS.

But then something happened.

The night she testified in court, Holder and the ex-girlfriend had a
phone conversation, which was recorded by the Bay County Jail. During
that conversation, Holder told the woman "I hope you know what you did.
I just hope you know what you did, you know. That’s all I hope. I hope
you know, you know, next year or the year after or the year after, you
can’t take it back and say ‘well, I didn’t mean to say that’, you know.
It’s – it’s done."

The woman went to the prosecutor the next morning and informed her
she had lied on the stand. The prosecutor put the woman back on the
stand, where she proceeded to tell the jury that in fact, prior to any
sexual activity, Holder had informed her he was HIV-positive. Her story
directly supported the testimony Holder had given. The prosecutor asked
her if she knew that HIV could lead to AIDS, and the woman testified
that she did. She acknowledged lying to police investigators and on the
stand.

The prosecutor argued that the ex-girlfriend’s recantation had been coaxed by Holder’s phone call from jail.

On Dec. 3, 2001, the jury of 11 white women and one white man –
including the five jurors who noted their opposition to inter-racial
relationships on their questionnaires – voted to convict Holder of
violating the disclosure law. He was sentenced to 10-15 years in
prison, three times the recommended sentence. That sentence was reduced
in 2003 to 7 1/2 to 15 years because of an appeal that the state
Attorney General’s office failed to respond to. But Holder’s pleas for
justice in regard to incompetent counsel were denied by the Michigan
Court of Appeals and the Michigan Supreme Court. A writ of Habeas
Corpus filed in federal court was denied and is currently slated for a
hearing in the U.S. Court of Appeals for the Sixth Circuit in June.

Bay County Prosecutor, Barbara Heyward did not respond to requests for comments on Holder’s case.

Advocates and law makers say its time to change the law

"By criminalizing sexual activity, it hasn’t been able to protect
the public," said State Sen. Hansen Clarke, a Detroit Democrat. "We’ve
[the legislature] got to look at a different policy because the current
one is not effective. It could be something counterproductive, but I
have to research that more."

Clarke’s assumption that disclosure laws are counterproductive to
stopping the spread of HIV has been backed up by recent studies,
including a study by Carol Galletly and Steven Pinkerton of the Medical
College of Wisconsin’s Center for AIDS Intervention Research. That
study, published in the journal AIDS & Behavior, concluded:

Twenty-three U.S. states currently have laws that make
it a crime for persons who have HIV to engage in various sexual
behaviors without, in most cases, disclosing their HIV-positive status
to prospective sex partners. As structural interventions aimed at
reducing new HIV infections, the laws ideally should complement the HIV
prevention efforts of public health professionals. Unfortunately, they
do not. This article demonstrates how HIV disclosure laws disregard or
discount the effectiveness of universal precautions and safer sex,
criminalize activities that are central to harm reduction efforts, and
offer, as an implicit alternative to risk reduction and safer sex, a
disclosure-based HIV transmission prevention strategy that undermines
public health efforts. The article also describes how criminal HIV
disclosure laws may work against the efforts of public health leaders
to reduce stigmatizing attitudes toward persons living with HIV.

"As a general principle, we have a lot of concern about these laws,"
said Bebe Anderson, HIV project director for the national organization
Lambda Legal.

"It [the Michigan law] goes beyond the individual. These laws that
criminalize on the basis of HIV status adds to the stigmatizing of
people of HIV," Anderson said. "They don’t seem to serve a good
purpose. Often these laws are not really focused on risk behavior and
that’s the problem with the Michigan law."

Arguing that the Michigan law is too broad, Jay Kaplan, staff
attorney for the LGBT project of the American Civil Liberties Union of
Michigan, said a review of the law was due.

"I think it has been time to change the law since 1989," he said. "It’s time to make the law as narrow as possible."

"Certainly if the goal of the statute is to either deter people from
engaging in behaviors that would spread HIV or to punish people who
engage in those activities that the spread of HIV, it should be
broader," Gable said. "It shouldn’t just criminalize sexual behavior,
and it should also be narrower because it should criminalize sexual
behavior and other behavior that would actually pose a high risk of
spreading the disease as opposed to this statute which defines sexual
penetration in a very broad way that would encompass acts that were
really not likely to spread the disease."

Kaplan agreed with Gable, saying the law is so broad that it has
been used to charge some one for mutual masturbation. He said it also
does nothing to address attempts at safer sex, such as using condoms.
This overly broad law, combined with a local prosecutor’s wide latitude
in determining which cases to charge, opens the law up to abuse, Kaplan
argues.

"It is better, more responsible for both partners to have a
discussion," Kaplan said. "I don’t think it [the law] encourages that
kind of conversation."

A recent Law Note in the Cornell Law Review also argued for the
repeal of all HIV-related criminal laws. In the paper, the author
argues that the laws do nothing to address the current realities of
HIV, including the knowledge of likelihood of transmission based on
certain behaviors, medical intervention with anti-retrovirals and other
factors. The author argues that current, traditional criminal laws can
and should be used to prosecute and find criminal liability in HIV
transmission cases.

State Sen. Samuel Buzz Thomas, a Detroit Democrat, toyed with the
idea of introducing legislation to expand the disclosure law to include
persons infected with Hepatitis B and/or C last session. But the
legislation was never introduced, his chief of staff Dennis Denno said.
Thomas declined multiple requests for an interview on this topic.

"It makes a lot of sense to eliminate this type of provision and
focus any kind of prosecution in general criminal law statutes where
you can still go after a person who intentionally tries to infect a
person with HIV," Gable said. "It would certainly be harder on the
prosecution to get that kind of conviction under the general statutes.
But that kind of case is more rare and is distinct from the kinds of
cases that could be brought under this statute, which really doesn’t
achieve the goal of preventing the spread of HIV."

"These laws are a blunt instrument being used to address a
complicated matter medically," said Lambda Legal’s Anderson, "but also
are a complicated matter in the nature of sexual relationships."

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