Expert: Michigan's HIV disclosure law "inappropriate," designed to chase “boogeyman”
A recent legal case in Cass County is raising questions about HIV disclosure laws in Michigan.
Trevor Hoppe is a sociologist who specializes in sexuality, HIV and the law. His research studies are titled Punishing Disease and he is co-editor of The War on Sex, a forthcoming collection of essays that examines the criminal regulation of sex.
Hoppe wrote a piece in the Huffington Post about an HIV-positive man in Cassopolis, MI, named Corey Rangel.
It all started when police pulled Rangel over for a having a loud muffler. Rangel, on probation for drug-related charges, was cited for not wearing corrective lenses and driving without proof of insurance.
“He had to report that to his probation officer,” Hoppe says, “which he did, and his probation officer originally said basically, ‘Not a big deal, you’ve been great in the drug court program, you’re a model sort of participant, we don’t want this to interrupt your progress.’”
But several hours later, Rangel got a call that would change that. He was told he needed to report to jail immediately and to bring his phone with him.
"They're treating him differently than they would have an HIV-negative person on probation."
When he handed over his phone, Hoppe tells us police demanded Rangel give them the password to unlock the device. He was also expelled from the drug court program upon being taken into custody.
“[Rangel] didn’t understand exactly what was going on, but he did not feel that he had anything to hide from the police,” Hoppe says. So he gave them the password.
Later, he found out that the police had gone through his contacts list, "making calls to people in his contacts and asking them if they had had intimate contact with Corey and whether they were aware of his HIV status.”
Hoppe tells us it’s unclear how the police even knew about Rangel’s HIV status in the first place.
“The court has so far been unwilling or unable to turn over the records that would explain why he was expelled from the drug court program and why now he’s at risk of going to prison.”
The full extend of Rangel’s sentence was deferred when he entered the drug court program, but Hoppe tell us he could now face the full original sentence.
“The judge could effectively sentence him to many years in prison, and it seems like the only thing guiding their investigation here is Corey’s HIV status,” he says.
Michigan passed a law in 1989 that made it a felony for HIV-positive people to engage in sexual penetration without disclosing their status to their partner. But according to Hoppe, the police have stated that they found no evidence that Rangel has committed any criminal wrongdoing and no charges have been filed against him.
“What’s at stake in Corey’s case is just the notion that they investigated him for criminal wrongdoing when the only impetus for doing so was his HIV-positive status. So they’re treating him differently than they would have an HIV-negative person on probation.”
Hoppe tells us that Rangel will now be entitled to an “open and fair” hearing, in which the rationale for expelling Rangel will have to be made clear.
The HIV disclosure law in Michigan was designed to protect people from contracting HIV, but Hoppe’s research suggests it has had a different effect.
“These laws, unfortunately, reinforce the idea that we can protect people from disease using the criminal law,” he says.
"Punishment is not the best approach to controlling disease."
“But moreover they target HIV singularly. We don’t have these laws for other communicable diseases, and I think that exposes the fact that really what’s underlying here is that we have a disease that’s especially stigmatized because of the populations it affects.”
He explains that if the intent of such a law were truly to protect people from communicable disease, HIV would not be singled out in this way. But even if the law was concerned with communicable diseases more broadly, Hoppe says it would still be "inappropriate, merely because punishment is not the best approach to controlling disease. That’s why we have public health and medical institutions. Those are the institutions we have in our society to respond to and manage epidemics and communicable diseases.”
Hoppe has looked at cases like Rangel’s across the country. He says if you wanted to argue that these laws were protecting people, “you would expect to find many cases that resemble the kind of boogeyman many people talk about,” referring to a person who seeks to intentionally infect other people.
“You just don’t see that to be true,” he says. “The case law instead is full of people who either use protection and protected their partner from infection, or had an undetectable viral load and could not actually transmit the disease to their partner, or were in a relationship and … were scared, they didn’t know how to disclose their status to their partners. That’s the typical defendant in these cases, not the kind of malicious infector that people have in mind.”
Hoppe emphasizes that if we’re going to go after that “boogeyman,” the laws specifically requiring the disclosure of one’s HIV status are not the way to go about it. He argues that there are other laws, “assault laws, for example,” that could adequately handle a case of malicious infection.
Hoppe tells us that Michigan’s HIV disclosure law is fairly typical in that it does not require proof that there was a risk of transmission or that transmission even occurred. He says that actual transmission is an exceedingly rare outcome, occurring in fewer than 5% of cases in Michigan.
For a standout example of how to do things differently, Hoppe looks to California, where the law requires proof of a risk of transmission.
“It doesn’t make sense to punish people who have put no one in harm’s way, and I think California’s law tried to accomplish that by also requiring to show that there was intent to harm someone,” Hoppe says. “To my knowledge, you could count on one hand the number of felony cases in California brought under that statute, which I think reflects the real rarity of cases that are truly deserving of punishment.”
For Rangel, Hoppe tells us the ultimate goal is to get him back in the drug court.
“That’s where he should be,” Hoppe says. “He should not be facing years in prison just because he’s HIV-positive.”