HIV Positive Guys: Meet The New Criminal Class

We’ve all heard scare stories of “intentional HIV infection,” usually racially charged “news” accounts of HIV-positive men looking to infect innocents, male and female, who have no idea the danger they face when the hop into bed with the guy. But for the majority of people with HIV serving time right now in these cases — sometimes for decades — there was nothing intentional about it and no transmission even occurred.

These cases usually involve a frightened or disgruntled lover who claims they didn’t know their partner’s HIV status and then call the cops. In some cases, it doesn’t even matter if infection actually occurred. Prosecutors then add a strong dose of homophobia (A gay man is having intercourse! And he has AIDS!) and charge the defendant with everything from bio-terrorism to attempted murder.

To a jury unfamiliar with the actual extremely low risk of transmission in such cases and the mutual responsibility of both partners–and shocked that someone with HIV would dare to have sex at all–the crime seems obvious and horrific. The result is hundreds of long sentences for biting, spitting, or protected sex without regard for the actual harm inflicted, if any.

But help is on the way. Last week, a group of more than 150 advocates met in Iowa, the first state to reform their HIV criminalization statutes, to begin the work of advocating for decriminalization and finding help for those serving prison time.

Watch a video recap of the event below, including interviews with gay men who were convicted and jailed under the laws.


The most powerful speaker at the “HIV is Not a Crime” conference was a man named Kerry Thomas. He held the crowd spellbound for a full twenty minutes. And he never even took the stage.

When one of the conference organizers, Reed Vreeland, stepped forward to introduce the next speaker during the opening night program, the energized audience had already heard a few stories of both injustice and inspiration. Everywhere in the United States, people living with HIV are being sent to jail for little more than their HIV status alone. But Reed had something else entirely to present.

“Kerry Thomas was prosecuted of not disclosing his HIV status to someone,” Reed began. “Kerry also had an undetectable HIV viral load and he protected his partner by using a condom. No one was infected, and no one could have been. Kerry won’t get out of jail until the year 2038. Fortunately, we have him with us here this evening.”

And with that, Reed lifted his cell phone to the podium, and the strong, clear voice of Kerry Thomas, six years into his sentence at Idaho Correctional Facility, began to speak.

“Thank you, thank you for gathering to discuss this issue,” he said, and the stunned silence of the room was deafening. No one could begin to imagine what the man on the other end of the line must be going through.

Kerry spoke to the crowd of life behind bars, of his love for his family, of the prosecution led by people who didn’t believe he should be having sex at all. Then, he encouraged everyone in the room to work as hard as they could on reforming HIV criminalization laws, so that no one would have to go through the nightmare he was experiencing. He remained upbeat and gracious throughout.

“Thank you for speaking to us,” Reed said when Kerry finished his remarks.

The crowd swallowed the lump in their throats and came to life, beginning to applaud Kerry, and then to cheer, and it soon became an emotional outpouring of love and sadness and support that shook the auditorium.

“The room is applauding you,” Reed said into the phone. “Can you hear that?” How Reed kept his composure during the heartbreaking, inspiring moment was itself a considerable feat. Kerry’s response was drowned out by the thunderous ovation, so Reed continued relaying what he was witnessing from the stage.

“They are standing for you, Kerry,” he said calmly, as the ovation grew. “They are standing and applauding for you. They want you to know how much they support you.” The crowd thundered on, with tears in their eyes.

HIV cvanner crowdThe issue of HIV criminalization usually gets a visceral reaction. We all know someone living with HIV who was infected by someone who lied to them. No one at the conference believes that anyone who intentionally harms someone else should be excused. But harming others is covered in existing laws, and by creating specific laws against non-disclosure of your HIV status (26 States have them on the books), we create a viral underclass of citizens, held to different standards based solely on their health condition.

Hepatitis and HPV kill far more people each year than HIV, but we don’t criminalize transmission of those viruses. Why?  Probably because they aren’t associated with same-sex intercourse. And those of us with a sense of vengeance over each new HIV infection are playing right into the hands of conservative prosecutors who are more than happy to send some someone to jail.

It might be easy to dismiss the fate of the gay men serving time right now. But it is an injustice worth considering. With new prevention tools like PrEP for negative guys and positive guys becoming undetectable, the waters of disclosure are muddied and confusing. Is not disclosing HIV status, even when no one was put at risk, a crime worth jail?

For more information, check out The SERO Project, the Positive Justice Project, or the international efforts of the HIV Justice Network.

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  • Yiannis

    Thank you for the story, Mr. King! I remember your previous articles as well, they were equally eloquent and touching. As for the ideas included in the article, I fully agree with you. The HIV-specific laws are more about homophobia, rather than justice. As a result, many innocent people are in jail.

  • vive

    Great article. What a medieval time we live in.

  • ktwbc

    So the fact that this is on Queerty is designed to present this as a case of an HIV positive gay man totally discriminated against by homophobic prosecutors.

    You know, except for:

    a. Kerry Thomas is actually straight, and the sex partners he had sex with who made complaints are all female.
    b. His 20 year sentence was a result of his third conviction, in other words, a large sentence for a “repeat offender” (in the judge’s own words). He had been convicted and served much shorter terms already, yet still felt “too uncomfortable” to tell future partners of his HIV status. Yes it’s a shitty law that needs to be updated but maybe after the second time you got caught up in it, a simple “listen, I have something to tell you” would have been in order here.

    See and and

    Now, having said all that, yes, there’s very bad items in this law and it needs to be updated. But let’s not be “gay Fox News” here and not at least present a few more relevant facts.

  • Mark

    @ktwbc: There are plenty of examples of gay men imprisoned by these laws (two of them are interviewed in the video above). I found Kerry’s phone call to the conference compelling for all the reasons I outlined, and don’t believe I suggest his sexuality one way or another. The video link tells his complete story.

    One of the conference’s strongest facets was the diversity of the advocates and criminalization survivors themselves — black, white, straight and gay, male and female, transgender, etc. The only time sexuality was an issue was when discussing the homophobia (and racism) of these prosecutions, which affected people across the board. It felt good to be working on the issue freely across lines of gender and sexuality, because it affects us all. And I’m really glad Queerty gets that.

  • onanov

    More good news from Iowa. Nick Rhoades sentence was thrown out by the Iowa Supreme Court on Friday morning. He could be retried, but it seems unlikely now that Iowa has the first modernized HIV law in the USA. Nick had already been taken off the sex offender list through the laws provision removing those convicted of that status. As of now, he’s no longer a convicted felon. Today, I’m proud to be a resident of Iowa.

  • Jacob23

    What a disgusting article by a disgusting person. Belittling the knowing or reckless transmission of a deadly pathogen? Implying that the victims of this conduct are just “disgruntled lovers”? Comparing sexual intercourse with spitting or biting? What sick, twisted individual Mark King is.

    And BTW, Mr. King, you don’t get to set forth what the rights and responsibilities of the parties are. You have neither legal nor moral authority in this or any other sphere of life. Of course the negative partner should protect himself. But that is wholly distinct – and not dependent upon – the moral and legal obligation of the positive partner to not knowingly endanger others. If a negative partner is ignorant or naive, that isn’t a license to go in for the kill, as it were. That you view ignorance or naivete as an opportunity to be exploited only exposes you as a sociopath.

    BTW, looking forward to Queerty’s reporting on the case from Missouri, in which a man knowingly exposed hundreds of others to HIV. He didn’t tell them because he “feared rejection.” Sounds like Mr. King’s next hero.

  • Stache99

    @Jacob23:None of your hateful tirade makes a lick of sense. Mark has pointed twice that this wasn’t about the intentional transmission of HIV but the aggressive homophobic prosecution of people on just an accusation. It happens and I’m glad it’s being discussed.

  • masc4masc

    sorry but this is all very dishonest and strongly slanted. it’s not like some ‘disgruntled lover’ just makes an unwarranted accusation and the law just takes them for their word and throws the poz person in jail. guys that got serious time over criminal transmission most likely deserved it. it’s also not that easy to prove criminal transmission.

    there’s an easy way to avoid this type of thing: if u know ur infected, be upfront and honest from the jump. what’s worse, rejection or jail time?

  • Teeth

    THIS… and not “HIV =” is real.

    • Stache99

      @masc4masc: An example would be coming back months later while seeking retribution like the case that got tossed out in Iowa. The guy took all the precautions while having a undetectable viral count. Transmission was all but impossible. This is what Mark is talking about.

  • onanov

    Don’t feed the trolls, and we know who they are.

  • masc4masc

    @Stache99: key words: tossed out. all he had to do was register as a sex offender. again, he admitted he didn’t disclose. so like I said, all the drama could’ve been avoided by being upfront from the start. bet u he’s more honest now that he knows Iowa has consequences for the “he didn’t ask” mentality. every guy should be watching his own back, but the onus of disclosure is still on the infected. they’re FAR from scapegoats.

  • seaguy

    People who knowingly lie to partners about their partners about their HIV status should face prosecution but those who are up front should not. Sadly it comes down to a case of the negative sexual partner freaking out and lying to police in some cases and when that happens it should not even become a case unless transmission of the virus took place and the negative person became infected. Juries are often too biased against HIV+ individuals due to lack of education about HIV.

  • vive

    @masc4masc, did you miss the part where it was stated that THERE WAS NO TRANSMISSION?

  • Marisela

    Sorry but I think the laws need to stay. But I also think other diseases need to have their laws as well. Anyone that is fully aware that they have a disease has no right to put someone else in danger by not disclosing it. Let the other person decide if they want to take the risk. By not disclosing whatever you have to your partner is intentionally trying to infect them. And that is wrong! I don’t care what their viral load is and that they use a condom. that is not the point. Disclose that to the other person and allow them to decide if they want to put their life at risk. All STD’s need to have this sort of law. Now if they didn’t know they had something that is different. But if they are fully aware they need to go to prison

  • vive

    @Marisela, and you just made the argument that in those states it is better never to get tested for HIV. Q.E.D.

    • Stache99

      @Marisela: You’re cool with Marisela if you go by the down low approach of not knowing. Just don’t ever get tested and you can have all the sex the way you like.

      However, knowledge will get you in trouble. I don’t care about those icky people. Just arrest somebody!!

  • Paco

    @Marisela: “But I also think other diseases need to have their laws as well.”

    I feel that way every Flu season.

  • Marisela

    @vive That is not what I said. I said that if a person knows they have something, then as a decent human being they should disclose it to their partner. I have a right to know whether someone i choose to have sex with has a disease. And if they intentionally keep that from me after being fully aware they have something they are possibly putting my life in more danger. I should have the right to make that choice for myself. Not them. If I had something, I would never not tell the other person. I would not have the right to put them in more danger. Even with “protection” someone with a disease is more of a risk than someone without one. I don’t understand how you even got that I made the argument not to get tested. So are you saying that if someone could get in legal trouble for knowing they are diseased and not telling the other person they would just not get tested so they don’t risk getting in trouble? What type of person would do that? Well many probably which is why this subject is a topic right now. Sorry but I still feel if a person knows they have something its there duty as a human being to tell the other person and if that person is OK with it and wants to take that chance than that’s on them. But knowing and not disclosing or even worse lying if they are asked if they have something is at the very least assault if not more.

    • Stache99

      @Marisela: How about you thinking for yourself instead of demanding the Government protect your ass.

      All your examples are of people that like the down low kind of sex where as long as you say the magic words and ignore the rules all is fine.

  • Marisela

    @[email protected]vive: So are you saying you would be fine if someone was HIV+ plus had 2 other STD’s and just decided not to tell you they had it and you hooked up and then found out later on either because you got something or found out through someone else who had something? And you found out they knew they had these diseases and decided just not to tell you for whatever reason. You would be OK with that and just go on your merry little way? What about if you became HIV+ due to them? They thought their viral load was low and not able to spread but it did? I know several people that this has happened to. They would of not had sex with the person had they known they were positive. And that’s my point. That choice was taken away!

  • Throbert McGee

    Belittling the knowing or reckless transmission of a deadly pathogen?

    Correction: A not-very-contagious deadly pathogen. Most (though certainly not ALL) cases of sexual HIV transmission involve an HIV- person idiotically breaking safety rules so simple that they can easily fit on a business card.

  • vive

    @Marisela, nobody deserves HIV, but if your friends had unprotected sex with someone of unknown status, why would it be a surprise if they got HIV, and why would they put the blame on the other person?

    And don’t tell me they had protected sex and still got HIV. I won’t buy it.

    (By the way, there is really no excuse – it should be taken as a given that everyone’s status is unknown no matter what their last test might have said, until you know them VERY well.)

    By the way, there are very good reasons why an HIV+ person would not disclose their status to a casual partner, and there are many ways of having sex for which their status is completely immaterial. It may be understandable that some people might panic at the very idea of touching a poz person, but that is based in complete ignorance of how HIV is transmitted, and with all the available information nowadays there is no real excuse for being that way.

  • Lvng1tor

    I am HIV+ I have no problem in disclosing and have never since the day I found out failed to disclose my status to any partner. While not proud, I am not ashamed and see no reason to not disclose your status. If the other person is turned off then,excuse the turn of words…Fuck Em’

    If you are having sex in dangerous places or are hooking up with people you fear would hurt you if you disclose then you should not be having sex with those people. It’s much more simple than people are making it out to be.

    Now, there is a much different problem when it comes to living as an “out” pos person. Not everyone needs to know your status or deserves to. You have to be much more selective in who you tell…but you always tell your sex partner.

    It is also the responsibility of negative people to ask. Just assume everyone has it and protect yourself if ya don’t want it. Come on someone could say they are negative and really think they are because they think they are!

    If someone knows and is intentionally lying to their sex partners and having unsafe sex then they should be prosecuted.

    If someone is not disclosing and the other person is not asking and lets themselves engage in unsafe sex they and they alone bare the responsibility if they get infected. Normally, if someone is engaging in unsafe sex with someone they don’t know well then chances are there are multiple partners.

    I have seen it too many times. People think because it hasn’t happened and they have been BB for so long, that it will not happen. A lot of these people (from my experience) are not getting tested regularly.

    We need education not incarceration. Stop with the slut shaming, take personal responsibility and get rid of all these excuses and lies as to how people got infected. Stupid rumors. Transmission due to rape and intentional infections are rare. They happen but are not proportionate to the amount of people in jail and no where near all the “Infected Shamed Ones” that would have you believe their pos status was done to them…

    Take personal responsibility…These laws are archaic and based on fear not science or fact.

  • Cee

    Having had a friend who’s boyfriend knowingly gave him HIV, i definitely think laws need to be in place. They just need to be across the board and not only singling out people with HIV. The laws need to be updated too. I mean is someone spits on you or bites you like they said in the video that’s kind of taking it too far.

  • frenchie3998

    Its incredible in this day and age to not disclose your HIV status. My lover of ten years died of this terrible disease cause he was not told the other guy was positive. Yes I’m angry, I wish the guy would have gone to jail for it. My partner was naïve and innocent not understanding the danger. He got a very virulent strain of it and died from his first major infection. The guy who gave it to him lived on a few more years after my partner died from it. I wish he could have suffered as he suffered. To this day I cannot even say the name of the disease that killed him.

  • vive

    @livin1tor, no, it is not safe for a poz person to disclose their status to a casual partner when you don’t engage in unsafe sex. I think this article proves the point – people are in jail who claim they disclosed. It only takes one disgruntled or crazy ex-lover, who wasn’t even exposed (as in some cases here) to land someone in jail. Who is the jury going to believe anyway? The poz person “who must be a [email protected] or they wouldn’t be poz”? Even if it never goes that far, it only takes one big blabbermouth to spread the rumor or post it online and then you have to live with the red letter for the rest of your life.

    • Stache99

      @vive: That’s the elephant in the room. I would tell any poz person never to disclose to anyone you don’t trust. Not only the article but some of the comments on this post prove my point.

      Most of these people that have been prosecuted were found out later through acquaintances or friends. Disclosing to everyone only sets you up for later retribution. Just play safe.

  • Nowuvedoneit

    @Stache99: I was always told by many people including my sex ed classes to always assume that you just didn’t know the status of anyone or take their word for it. If you had to have sex be safer about it and get tested.

  • Sean Strub

    @ktwbc: Kerry Thomas’s case is much more complicated than represented in easily accessible media coverage of the case. He was known in his community and had been in the papers for his HIV status–including because of earlier prosecutions–and when I was in Boise to videotape an interview with him, while I was there I met people who said she knew he had HIV because they had gossiped with her about it. Even she agrees he always used a condom, had an undetectable viral load and did not give her HIV. And he’s three or four years into a 30 year sentence. Kerry is on the board of the Sero Project and is an exceptionally responsible, thoughtful and reflective person who has had some very rough luck. I wish we could find counsel to look more closely at his case and the circumstances of his conviction.

  • Sean Strub

    @Jacob23: Only rarely is there HIV transmission in any of these cases, Sero Project’s research indicates it happens in fewer than 5% of the prosecutions (we’ve tracked about 1300 instances when charges have been filed under HIV specific statutes). But decades-long sentencing, sex offender registration, etc., are not uncommon, even when there was not only no transmission, but there was no measurable risk of transmission.

    I find it interesting that the most damning and hateful and nasty comments about people prosecuted under these statutes almost always arise on blogs targeted to gay men, many of whom seem unwilling to actually understand the facts about this phenomenon and how it puts them at risk, whether they have HIV, do not have HIV or do not know.

    These statutes are horrible public health policy because they discourage people from getting tested; you can’t be prosecuted if you don’t know you have it. Yet most new transmissions do not come from those of us who know we have it, they come from people who have it and don’t know it. Many afraid to get tested because they hear about these cases that are so often “he said, she said, he said.” Yes, a sizable number of them are retaliation over bad relationships; there have even been circumstances where someone filed charges to get back at someone and then retracted and acknowledged they were lying

    There is no question but that a harm is inflicted when someone who knows they have HIV, especially if they are highly infectious, does not inform a partner and transmits HIV to them. So this isn’t about claiming that is a morally neutral behavior; it is not. However, in the absence of a measurable or reasonable risk of transmission, disclosure is, I believe, morally neutral. The challenge is how to reduce the irresponsible and reckless behavior that puts others at risk–whether by people who know they have HIV or by people who have it and don’t know it–without criminal prosecution, which only makes the epidemic worse, makes it less likely people will disclose and erodes confidence in public health.

    The indignation from those who believe it is their absolute right and the legal obligation of their partner to inform them of the partner’s HIV positive status before having sex is laughable, if it wasn’t so hypocritical. They operate from an arrogance of the well, an assumption that it is the obligation of everyone else to protect their (presumed) HIV negative status. Attacking those who don’t disclose is a way of excusing their own irresponsibility, to “other” people with HIV into a less important status as citizens while they bask in their illusion of security.

    Public health isn’t about protecting just one group in society, it is about protecting all of society. While some may think it appropriate to so severely punish and beat up some people with one certain virus (that causes a lifelong chronic but manageable health condition), while not doing so with other viruses, (including those that if left untreated can seriously harm or kill someone) it is the height of stigma. Do these men really think they want the government to get into the sex lives of gay men and start regulating what two consenting adults can and cannot do with each other, or what they must or must not say to each other?

    There are ways to acknowledge and address harm when inflicted, but doing so through the criminal justice system is idiotic, particularly when the track record so far shows far more injustice than justice arising out of these statutes.

  • vive

    @Sean Strub, you are right about the hypocrisy, especially given that some of these people writing the hateful comments who think protection by serosorting is a good idea, themselves may be HIV+ without knowing it (given the poor track record of serosorting) and are therefore themselves having sex with others without informing them.

  • Polaro

    This is not simple, but people try to make it simple. HIV is still a pretty bad thing to pass along. For those with HIV that are taking their meds and being honest and careful, that’s responsible and great. With PreP is it now not outside the realm of belief that an HIV+ person could be in a safe sexual relationship with a HIV- person and not pass the disease along. But that should require being informed and consent.

    Using the illogical rationale that it is OK to lie to sex partners and not disclose something they should be told before having sex is the absolute wrong way to go. That is just as crazy as jailing someone on a he-said, he-said case.

    Talk circles around it, but anyone who is HIV+ should be confiding this to anyone they plan to have sex with. If they don’t know them well enough to share that information with them perhaps they should not be having sex with them anyway.

    Flame on.

  • Sean Strub

    Polaro, I agree that HIV is a “pretty bad thing to pass along” as it is life-changing to acquire it, expensive, a life-long medical issue, makes intimate relationships extraordinarily difficult and is stigmatizing beyond belief. I think it is wrong when someone puts another person at risk of harm, no matter the circumstance. But there are all sorts of things that are wrong that we don’t make crimes punishable by law. More women died of cervical cancer last year, from strains of HPV, than died of AIDS from HIV, yet we don’t see HPV-specific criminal statutes, mainly because it isn’t stigmatized the way HIV is.

    Engaging in intimate sexual contact with another person requires one to make a decision to undertake certain risks (biological, physical, emotional, whatever) and a person should be responsible for the decisions they make. If a person isn’t able to accept those risks with any given individual, they shouldn’t be having sex with them. Or if they do, they sure shouldn’t hold the other party responsible for what happens.

    Most HIV is being transmitted by people who have it and don’t know it–often claiming they are negative–than by those who have gotten tested. Should we be arresting those people? What is the more irresponsible behavior: a person who is negative or doesn’t know their status having condoles sex with someone whose HIV status they don’t know or don’t ask about, or the person with HIV who has an undetectable viral load who has condomless sex and doesn’t disclose their HIV positive status?

    If someone feels they have been injured by another party, like if that other party lies to them about their status, the recourse for such claims should be in civil courts. The criminal courts accomplish nothing except satisfy some sense of vengeance on the part of the person who engaged in unprotected sex and felt wronged by a partner who has HIV.

    Criminal prosecutions do not reduce HIV transmission and, in fact, the evidence is growing that they actually further HIV transmission (mainly but not solely because of how they discourage HIV testing). Criminally prosecuting non-disclosure makes it more difficult to disclose, keeps people from treatment and greatly enhances the stigma that almost everyone acknowledges is the main obstacle in addressing the epidemic.

    Almost every time someone “gives” someone else HIV, that someone else “takes” HIV from them; the responsibility for HIV prevention is shared equally. Yet when both parties fail in that responsibility, it is only the person with HIV who goes to jail.

    HIV criminalization is predicated on the belief that it is the rest of the world’s responsibility to protect the HIV negative status of those who do not have HIV. Many people with HIV are severely immune compromised and exposure to a cold or flu could potentially be fatal for them. Do those who support HIV criminalization also support flu criminalization? If not, why not? Are not our lives as precious and valuable as yours, or are we somehow an inferior class because we carry this virus and therefore entitled only to inferior protection under the law.

    We all want partners who care for us, wouldn’t put us at risk and wouldn’t lie to us. Some of us are able to find them. But we also should be realistic about the world around us and understand that there are others who are either so damaged themselves, or uncaring, or whose expectation of social responsibility is different from the norm, or who are so stigmatized or frightened they cannot always disclose. We can’t either make that go away or wish it away by criminal prosecutions; we only make it worse.

  • Throbert McGee

    More women died of cervical cancer last year, from strains of HPV, than died of AIDS from HIV, yet we don’t see HPV-specific criminal statutes

    Er, wait… why are you excluding deaths from “HIV complications” that did not involve “full-blown AIDS”?

    For instance, people who die prematurely from liver disease linked to long-term use of antiretrovirals should also be counted among “HIV-related fatalities,” I would think, even if they never developed AIDS.

    To put it another way, if antiretrovirals didn’t exist, then the number of HIV-related deaths would utterly dwarf the number of HPV-related deaths. (Cervical cancer is a fairly rare complication of HPV, but prior to antiretrovirals, full-blown AIDS was a common and normal complication of HIV.)

    • Stache99

      @Throbert McGee: HPV is responsible for over 99% of the cases of cervical cancer. It’s a common occurrence of the virus. There’s vaccines for it but it still kills 5,000 women per year.

      You could easily throw Hepatitis into your analogy too since it’s usually part of the scenario of Liver failure. Why not make laws for that too?

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