Punishing Disease: HIV and the Criminalization of Sickness by Trevor Hoppe

Author:Trevor Hoppe [Hoppe, Trevor]
Language: eng
Format: epub
ISBN: 9780520291584
Publisher: University of California Press
Published: 2017-11-10T05:00:00+00:00

Complainant: I’m still taking tests. I just got done with my three-month test, and I came back negative. But there are a lot more tests, I’m nowhere done. I’m nowhere in the clear. . . . I just got done with my three-month test and I have a six-month test and I have a year test and a two-year test. . . . I think I even have a five-year test if the two-year test comes back negative.

Prosecutor: Okay. At any point can they say definitively that you do not have it?

Complainant: I mean, there’s never any time because people have showed up like ten, twelve, fifteen years later with it.61

She concluded her testimony by imploring Judge Blackburn to hand down the maximum sentence: “Right now my tests have come back negative, but that’s not saying that they’re always going to come back negative. And three years is not worth the value of a life.”62 The prosecutor parroted the woman’s testimony, arguing that the woman’s anxiety should render Scott ineligible for a diversion sentence that would have resulted in his record being expunged after a period of probation.63 “The best case scenario is a lifetime of uncertainty for her,” he argued.64 “She’s got to be worried about this and . . . got to tell everybody that she’s going to have a relationship with about it, . . . Three years is not sufficient for that type of thing.”65 Ruling the crime “especially violent, shocking, reprehensible,” Judge Blackburn agreed with the prosecutor, denying Scott both diversion and probation, and sentencing him to the maximum—three years in prison—for “destroy[ing] somebody’s life.”66

It is important to note that the lingering possibility of infection did not always sway judges to apply sentence enhancements. In 1998, for example, Chester B., a thirty-one-year-old Black man, pleaded guilty in Hamilton County, Tennessee, to charges that he failed to tell a woman he was having sex with that he was HIV positive. Although she had tested negative six months after the encounter, a representative from Chattanooga CARES, an AIDS service organization, testified that “we do advise people to continue testing for a full year.”67 The judge expressed concern that, although the woman “has been clear up to this point . . . we don’t know that she’s going to be permanently clear.”68 The judge even went on to compare the crime to murder: “It’s, I guess, analogous to putting a couple of bullets in a revolver and spinning the chamber and pointing at somebody’s head and pulling the trigger, because it’s a very significant death, it does create a risk of death, not just serious bodily injury, but death.”69 Despite these explicitly stigmatizing comments (comparing HIV to a bullet that kills instantly, people living with HIV to weapons, and the risk of transmission to the one in six of Russian roulette), the judge rejected applying the sentence enhancement factor for putting another person at a risk of death. However, he did so because he believed that putting the

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