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Ken Monteith

Ken Monteith

Ken Monteith was diagnosed with AIDS and 4 CD4 cells in 1997. Ken is a recovering lawyer (it's a process!) living in Montréal, where he obsessively counts his CD4s with equal fluency in English and French, pausing only to glare at those who dare to taunt him with their higher numbers.


[In]justice at its Worst

Wednesday, 20 May 2015 Written by // Ken Monteith - Montreal Correspondent Categories // African, Caribbean and Black, Gay Men, International , Legal, Living with HIV, Opinion Pieces, Population Specific , Ken Monteith

Our Montréal correspondent — and former lawyer — Ken Monteith rants about the latest HIV criminalization case from south of the border in which the accused man was given a 60-year jail term

[In]justice at its Worst

The internet is abuzz with the latest case of HIV criminalization from Missouri, in which a college wrestler, who is gay, was convicted of two counts of transmitting HIV and a number of other counts of exposing partners to the risk of transmission of HIV. The sentence? 60 years, although it seems like his legal team is trying to have the two 30-year sentences serviced concurrently, so he would get 30 years for not saying something.

If I don’t use his name or his image, it is deliberate: I refuse to participate in stigmatizing this guy by spreading around his image or his name. 

It’s the worst nightmare of anyone living with HIV, to have a former partner come forward to allege that you didn’t tell them before you had sex and they surely wouldn’t have done what they did if they knew you were HIV-positive.

That nightmare turns into something particularly grotesque in this case, a black gay man at a mostly white college in a state with a difficult history of race relations, one that has also armed itself with some strange HIV-specific laws that pay little attention to HIV knowledge and turn health care providers into witnesses for the prosecution. 

The Law in Missouri 

It is a crime in Missouri for an HIV-positive person to be or attempt to be a donor of blood, blood products, organs, sperm or tissue (except for research), or to “act in a reckless manner to expose another person to HIV without that person’s knowledge and consent”.

It goes on to specify that those prohibited exposures include oral, anal or vaginal intercourse, the sharing of needles, or by biting someone in a way “which causes the HIV-infected person's semen, vaginal secretions, or blood to come into contact with the mucous membranes or nonintact skin of another person.” 

Some allowable forms of proof that these things have happened include proof of the HIV-positive person’s knowledge of his or her status before a sexual act or sharing needles, diagnosis of syphilis, gonorrhea or chlamydia after the HIV diagnosis or another person proves sexual contact with the person after the HIV diagnosis. Oh, and something special in Missouri law: when you get an HIV diagnosis, you must sign a form acknowledging the diagnosis that is kept on file and may be subsequently used as proof of your date of diagnosis. No counselling about the consequences or access to a lawyer for that. 

What’s not allowable? Proof that a condom was used as a means of defence. Leaving aside the fact that several situations described in the law would not lead to HIV transmission, there is clearly a focus on penalizing people rather than trying to stop the spread of HIV. (You want to discourage STI testing for the HIV positive? Really?!!). 

See the Missouri law here if you are so inclined. The maximum penalty is 30 years if there is transmission and 10 if there isn’t. 

The other thing that looks strange from my comfy seat in Canada is the fact that the jury is the one determining what the sentence will be. That’s probably the wet dream of our federal government that has sought on many occasions to take away the discretionary powers of our well-trained and professional judges, although I won’t necessarily be defending our own judges’ records in HIV cases. The jury “of his peers” in this case? 11 white and one black. 

This Case 

I’m at a distinct disadvantage in referring to the details in this case, because I am relying heavily on what other people are reporting, and many of those reports are from people who are not necessarily very up-to-date on the HIV information. By far the best report I read comes from Stephen Thrasher on Buzzfeed, but even he is not clear on whether the accused had any access to, or was on any treatment. So we’ll have to set aside considerations of whether an undetectable viral load had any role whatsoever to play. 

What seems to have happened is that this guy found out he was HIV-positive and contacted a former partner to tell him, under most circumstances a highly commendable action. The partner’s reaction was to file a complaint against him, which got him arrested from his class, kicked out of school and on the front page of the local newspaper. Of course, the usual circus ensued — looking for more “victims” by public appeal and by combing through his computer and cell phone. My inner cynic suspects that the police weren’t looking for any exculpatory proof (disclosure in chats, etc.), just names of probable “victims”. 

When is the last time you heard of the police disclosing the name and photo or publicly seeking other victims in a case of police brutality? Reckless driving? Fraud? Nope. Only the stuff that scares us, I guess, whether or not there is any science behind that fear. 

Noteworthy in the Buzzfeed report are some of the comments from “victim” #1 who filed the original complaint. Oh, he had had condomless sex with other people in the past, but those people had always been friends or acquaintances or at least “looked clean”. There’s a guy holding up his side of the responsibility for ending HIV transmission, right?

While I would never wish an HIV infection on anyone, I have a lot of trouble with people who place the blame on others while relying on their own distinctly irrelevant measures to avoid an infection. I’d tell him to bite me, but that would expose him to a criminal prosecution in Missouri, so I won’t. 

If there was any good news in this, it is that several of the so-called “victims” refused to press charges, but I wouldn’t delve too far into their reasons for not doing so, as some of those were rather iffy too. Even in the face of that, since the accused had filmed a number of his encounters (not all that rare these days…or so I am told!), the prosecution decided to disclose the existence of those videos to the jury before sentencing, presumably to whip them into a vengeful fury about how prolific a “monster” the person before them was. 

The Problems With Disclosure 

My word against yours. That’s the basic problem with disclosure or lack of disclosure in a criminal case. Even though the trier of fact (the jury, or the judge in the absence of a jury) is supposed to be looking for a reasonable doubt, it seems like the tendency is always to say that the accused is less credible (or not credible) because he or she is seeking to save himself or herself. There never seems to be any consideration of the “victims” seeking to be exonerated from their own roles or their own shame by insisting there was no disclosure. 

So how do you prove disclosure? There are some delightful suggestions about videotaping the disclosure and the person’s consent, or having your partner sign a form to attest to disclosure and consent, but who in their right mind is ever going to do those things? Not you and not me, unless one of us has been through this nightmare. 

The other aspect of disclosure is something the courts never seem to take into consideration. When I disclose my status, I am exposing myself to all manner of discrimination and non-respect of my rights as a person, entirely dependent on the disclosee’s good will to keep the information confidential. We see enough cases of jobs denied or lost and confidentiality not respected to know that this is a real problem in our society, and not one that governments are doing anything proactive to end.

If your right to privacy is violated, YOU have to prosecute to seek compensation; if you don’t disclose your HIV status to an active and willing sex partner, the state is happy to step in to prosecute you to satisfy that person’s fear, desire for revenge and probably shame for not asking or not deploying measures to avoid HIV transmission in the first place. 

I know that if I say that disclosure is difficult or the strange methods of proving it are unrealistic when you are talking about someone you have just met, I’m sure that would be met with a whole lot of sex-negative talk about saving it until marriage or waiting until any possible window periods have passed and getting tested together. I don’t know what planet those people live on. On my planet, these things happen, and they don’t necessarily lead to HIV transmission. 

I like to think that I am notoriously HIV-positive — it’s on all my profiles, blog, Tumblr account, etc. — but I know that wouldn’t be enough to defend myself from an accusation of not having disclosed my status. I don’t always disclose my status, but I don’t take transmission chances and I actually find myself disclosing more often to stop someone else from doing something that would be a risk for him or for me that I didn’t want to do in the first place.

I have written before about the person who asked me after we had sex and how I had to play social worker to calm him down when I answered (we had not done anything risky and my viral load was undetectable). My second line of defence in that case was going to be his shame: his likely reluctance to describe just where it was that we met. No shame on my side. Probably a good thing I didn’t have to test that one out before the courts. 

Yes, life would be better if we could all disclose, but the world we live in has a tendency to punish the disclosure socially or by discrimination and to punish the non-disclosure criminally. That’s quite a choice to have to make.