How the Conviction and Sentencing of "Tiger Mandingo" Modernized Missouri's HIV-Related Statutes in 2021.

AuthorMcelhose, Ryan Jay

"I want every person living with HIV to celebrate their birthday, go to the movies, have great sex, and lay on the beach with a cold beverage. I want people living with HIV to live, and it's on us to build a world where they can, without fear."- Molly M. Pearson, MSW (1) TABLE OF CONTENTS I. INTRODUCTION 282 II. WHO IS TIGER MANDINGO? 284 III. WHAT IS (AND IS NOT) HIV? 286 IV. HIV STATUTES IN THE UNITED STATES 289 V. MICHAEL JOHNSON IS ARRESTED 290 VI. MICHAEL JOHNSON'S RACE, SEXUALITY, AND HIV STATUS ON TRIAL 292 VII. THE CONVICTION OF MICHAEL JOHNSON 294 VIII. THE APPEAL AND OVERTURN OF MICHAEL JOHNSON'S CONVICTION 296 IX. MICHAEL JOHNSON IS RELEASED FROM PRISON 303 X. HIV IN MISSOURI IN 2021 304 XI. CONCLUSION 325 I. Introduction

With contradictory trial testimony, no genetic fingerprint testing, and little to no questioning of his sexual partners' credibility, Michael Johnson or "[T]iger Mandingo" as he referred to himself on social media, engaged in sexual acts with six different men, all of whom claimed that Michael lied about living with human immunodeficiency virus (HIV). As a result, the State of Missouri charged Michael with two counts of "[r]ecklessly infecting a partner with HIV and four counts of [exposing or attempting to expose] another with HIV." (2) The jury found Michael Johnson guilty of five felony counts which resulted in a 30-year prison sentence.

On December 20, 2016, the Missouri Court of Appeals overturned Michael Johnson's conviction, holding that "[t]he trial court [had] abused its discretion." (3) The reversal of Michael's conviction was, ultimately, the function of a discovery violation; the court did not reach the question of whether Michael's 30-year sentence was cruel and unusual and thus constitutionally impermissible. (4) However, Michael's conviction and sentencing sparked international attention towards how the United States continues to convict people living with HIV under archaic statutes that do not align with medical and scientific advancements or even moral standing. Today, HIV is a chronic disease, like diabetes, yet exposure to HIV is still treated as if it is a 'death sentence' in both public opinion and American jurisprudence. (5) These convictions and sentencing guidelines result in harsh sentences for punishments that do not match the "[c]rime," misplaces responsibility when two consenting adults choose to have sex and raises the possibility of exposing people to wrongful convictions.

On August 28, 2021, the state of Missouri modernized its HIV statutes from the 1980s to lower the punishment for exposure to HIV and raised the level of intent prosecutors must prove to convict a person living with HIV of a felony. While modernization is a step in the right direction, the modernized law needs to be analyzed to determine whether the law is up to speed with the science and if people living with HIV are still vulnerable to harsh sentences and wrongful convictions.

In this expository, Section I gives background information on Michael Johnson, what is (and is not) HIV, HIV criminalization laws in the United States, a brief history of HIV criminalization laws in Missouri, and Michael Johnson's trial, conviction, appeal, and release from prison. Section II highlights how Missouri updated its statute and expanded HIV prevention services, both in 2021. Section III analyzes how the modernized law has some legal considerations: whether the language of intent should be narrowed from knowingly to purposefully, whether the standard of punishment should be reduced from a felony to a misdemeanor, whether an undetectable viral load is the appropriate standard to protect people living with HIV from being charged with knowingly transmitting or exposing someone through an activity that creates a substantial risk of transmission, whether HIV prevention medicine such as PrEP and PEP helps place all sexually active consenting adults responsible for their sexual health in the eyes of the law, and how courts and lawmakers should respond when the accuser alleges that the accused did not disclose their status when the accused asserts that there was a disclosure of their HIV status.

  1. Who is Tiger Mandingo?

    Michael Lewis Thompson was born on December 11th, 1991, in Indianapolis, Indiana. (6) He was the youngest of five sons to a single mother. (7) Michael and his mother both believe that he has dyslexia which resulted in him enrolling in special education classes. (8) None of his classes mentioned homosexuality--which he internalized to mean that it was wrong for him to be gay. (9) By high school, Michael had a successful wrestling career which culminated by winning the Indiana State Wrestling Championship in 2010, during his senior year. (10) Coupled with practiced discipline, Michael would wear his "[l]ucky tiger shirt" to his wrestling matches, becoming "[T]iger" the wrestler. (11) Later on, Michael was also exploring his identity as someone both black and gay by walking in ballroom house balls, joining the House of Mizrahi. (12) The wrestling ring transformed Michael to Tiger and the ballroom scene transformed him from Tiger to Tiger Mandingo. (13)

    After high school, Michael enrolled at Lincoln Junior College in Lincoln, Illinois, where he earned an associate's degree in General Studies (14) and won the National Junior Wrestling Championships in 2012. (15) As a result, Lindenwood University, a private liberal arts university located in St. Charles, Missouri, recruited Michael to continue his education and also to wrestle. (16) St. Charles has a 91 percent white population. (17) At Lindenwood, Michael was generally accepted on-campus; however, a former teammate reported that at least one student athlete did not want to practice with him, and no one reportedly volunteered to wrestle with him either. (18) At the same time, Michael introduced himself as Tiger Mandingo on social media platforms and dating profiles. (19) While in college, on January 7th, 2013, Michael was diagnosed with human immunodeficiency virus (HIV), and signed a legal form (20) which acknowledged that he understood his diagnosis and that any time he had sex with someone without disclosing that he is living with HIV, he would be breaking the law, subject to a possible felony conviction.

  2. What is (And is Not) HIV?

    HIV is a virus that attacks cells in the body that fights infections, resulting in a person being more susceptible to other infections and diseases. (21) HIV is transmitted by contact with certain bodily fluids of a person living with HIV, most commonly during condomless sex or through sharing injection drug equipment (22). If left untreated, HIV can lead to acquired immunodeficiency syndrome (AIDS). In the United States, gay, bisexual, and other men who have sex with men are the population most affected by HIV. (23) According to Centers for Disease Control and Preventions (CDC), in 2018, gay and bisexual men accounted for 69 percent of new HIV diagnoses. (24) By race/ethnicity, "[B]lacks/African Americans and Hispanics/Latinos are disproportionately affected by HIV compared to other racial and ethnic groups." (25)

    A person can only get HIV by coming into direct contact with certain body fluids from a person with HIV who has a detectable viral load. (26) These fluids include blood, breast milk, rectal fluids, semen and pre-seminal fluid, and vaginal fluids. (27) For transmission to occur, HIV in these fluids must get into the bloodstream of a person not living with HIV through a mucous membrane (found in the rectum, vagina, mouth, or tip of the penis); open cuts or sores; or by direct injection. (28) HIV is not spread by air or water; drinking fountains; engaging in closed-mouth or "[s]ocial" kissing with a person with HIV; mosquitoes, ticks, or other insects; saliva, tears, or sweat that is not mixed with the blood of a person with HIV; shaking hands, hugging, sharing toilets, sharing dishes, silverware, or drinking glasses; or other sexual activities that do not involve the exchange of body fluids (e.g. touching). (29)

    A positive HIV diagnosis should not be taken lightly; however, with HIV treatment and care, the diagnosis is no longer a "[d]eath sentence." (30) Presently, although the human body cannot rid itself of HIV and no effective HIV cure exists, it is treatable by taking HIV medicine called antiretroviral therapy (ART). (31) As a result of years of research which led to this groundbreaking medication, people living with HIV live long and healthy lives and prevent transmitting HIV to their sexual partners. (32) In addition, there are effective methods to prevent HIV through sex or drug use, including pre-exposure prophylaxis (PrEP) (33) and post-exposure prophylaxis (PeP). (34)

    In addition, an overwhelming amount of clinical evidence firmly established the Undetectable=Untransmittable (U=U) campaign as scientifically sound. (35) U=U means that people living with HIV who achieve and maintain an undetectable viral load--the amount of HIV in the blood--by taking and adhering to ART as prescribed cannot sexually transmit HIV to others. (36) The U=U campaign was launched after three large studies (37) on sexual transmission of HIV were conducted with thousands of serodiscordant couples, meaning one partner living with HIV and another partner not living with HIV. (38) In these studies, not a single case of HIV was transmitted from someone who was virally suppressed to their partner that was not living with HIV. (39)

  3. HIV Statutes in the United States

    According to 2020 data from the Center for HIV Law & Policy, thirty-two states have HIV-specific criminal laws and/or sentencing enhancement applicable to people living with HIV. (40) Twenty-five states have prosecuted people living with HIV under non-specific, general criminal laws. (41) Eight states have sentencing enhancements applicable to people living with HIV who commit an underlying sexual assault crime. (42) Six states may require...

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