THE DECEPTIVE FERMATA OF HIV-CRIMINALIZATION LAW: REREADING THE CASE OF "TIGER MANDINGO" THROUGH THE JURIDICO-AFFECTIVE.

• Author: Lawless, Joseph F.

Abstract

In July 2015, Michael Johnson, a twenty-three-year-old Black queer college student in Missouri, was sentenced to slightly over thirty years in prison on one count of reckless transmission of Human Immunodeficiency Virus (HIV) to another person and on four counts of reckless attempted transmission of HIV. Johnson's conviction and exorbitant carceral sentence are not unique, however. State penal laws criminalizing the transmission of HIV have existed for well over twenty-five years and have remained nearly impervious to legal challenge throughout that time. This Article queries the continued vitality of HIV-criminalization laws and argues that their survival reflects their investment in appeals to the affective--the sensations of bodily impingement and intrusion that the terrifying spectacle of HIV is meant to conjure. The injection of the affective into the jurisprudential regime of HIV criminalization is shown to be at the core of Michael Johnson's prosecution and conviction, animating Johnson's unwitting transformation into HIV itself Reflecting on this disturbing genealogy, the discussion concludes with both legal and critical prescriptions to combat the persistence of HIV stigma.

PRELUDE: THE CRIMINAL THEATER OF "TIGER MANDINGO"

In early October 2013, a queer white male student of Lindenwood University, located in St. Charles, a suburb of St. Louis, Missouri, had his second sexual experience with fellow Lindenwood student Michael Johnson. (1) The two had first met through a cellphone application often used by queer men to facilitate sexual encounters; Johnson, a twenty-three-year-old Black transfer student and member of the university's wrestling team, employed the username "Tiger Mandingo." (2) That evening, Johnson and his partner had condomless anal sex for the first time. (3) The choice to forego condom use during anal intercourse--a practice sometimes referred to as "bareback sex" among queer men--was allegedly made by Johnson's partner. (4) The student's interest in Johnson had been piqued because, in his words, Johnson was "only [his] third [B]lack [sexual partner]." had a "huge" penis, and had described himself as "clean," an unfortunately common euphemism for Human Immunodeficiency Virus (HIV) seronegativity. (5) On October 10, 2013, several days after their encounter, Johnson informed his partner that he had tested positive for '"a disease"' and that he did not know whether a cure for it existed. (6) As he would come to understand, Johnson had tested positive for HIV.

Later that same day, "Johnson was pulled out of class and led away in handcuffs by [police] ... [and was] charged with [two counts] of "recklessly infecting another with HIV' and four counts of 'attempting to recklessly infect another with HIV,'" all felonies in the state of Missouri. (7) Johnson was immediately detained in a county jail, where he would spend the next eighteen months, primarily in solitary confinement, until his trial began on May 11, 2015. (8) The trial lasted for several days, and, after having left for some two hours to deliberate, the jury reached its verdict: Johnson was found guilty on one count of reckless transmission of HIV and on all four counts of reckless exposure of HIV. (9) The following morning, the jury convened to hear arguments about sentencing from both the prosecution and Johnson's counsel; it took them an hour to sentence Johnson to a total of slightly more than sixty years in prison. (10) The trial judge scheduled a final sentencing hearing for July 13, 2015, during which he "ruled that Johnson could serve his sentences concurrently and sentenced him to [thirty] years in prison." (11)

The conviction of Michael Johnson emblematizes the egregious jurisprudential system responsible for the ongoing criminalization of the HIV-positive sexual subject. (12) The legal history of HIV criminalization, now approaching three decades in age, has been thoroughly documented by scholars whose work spans multiple disciplines; accordingly, my purpose here will not be to supplement the incisive work detailing the HIV-criminalization regime. (13) Instead, I offer a critical examination of the sustained normative force of HIV-related penal law through an unexplored lens--that of the affective, of affect. As I explain further below, my analysis is indebted to critical theorizations of affect as the infinitude of a body's "capacity to affect and to be affected," (14) as the potentiality of a body's "ability to act and be acted upon, [thus] what it can do and what it can undergo." (15) To effect an examination of law through the richness of the affective opens for us the possibility of understanding law as constitutively tied to "a physiological and biological phenomenon, [consequently] signaling why bodily matter matters, [why that which] escapes or remains outside of the discursively structured and thus commodity forms of emotion, of feeling" must be interrogated. (16)

Locating the criminal prosecution of Michael Johnson within a larger constellation of sexual governance, this discussion charts how the affective has produced and has been produced by the discourse of HIV criminalization. It therefore queries how notions such as viral contagion, bodily vulnerability, and sensorial impingement sustain the aggressive use of criminal law against HIV-positive sexual subjects. Consideration of these questions provides a backdrop for this argument's central assertion: that the depiction of Michael Johnson as a predatory danger to the health and sexual propriety of his community achieved its perverse success through recourse to a language deeply rooted in affective allusion. Johnson's prosecution illuminates how HIV becomes increasingly imagined as an all-consuming, homicidally appetitive contagion. No longer existing as a virus within the body, HIV is ultimately transformed through the law's appeal to the affective into the psychic master of the body it inhabits, demonstrating a will to power all its own. In so doing, it destroys any agency once accessible to the subject.

My argument proceeds in four Parts. In Part I, I identify and develop the theoretical context for the arguments I present in Parts II, III, and IV. Part II brings this theoretical context to bear on the regime of HIV-criminalization law by tracing the presence of the affective in state criminal statutes and judicial opinions and the pernicious effects of that presence. My objective here is twofold. First, I suggest that HIV-related state penal codes regularly reconfigure the HIV-positive sexual subject as a container of fatal bodily fluid and disease. Through allusion to the affective dangers of HIV to heteronormative ideals of intimacy and kinship, these statutes feed a spectacular narrative of indiscriminate, purposeful HIV transmission. The second purpose moves my discussion toward state judiciaries' reviews of convictions based on HIV-criminalization law and the rhetorical excess seemingly definitive of these opinions. I demonstrate that this excess posits the HIV-positive sexual subject as the vessel within which HIV is psychically personified, thereby ensuring the proliferation of HIV as public predator and psychic seducer.

In Part III, I turn to the prosecution of Michael Johnson. Johnson's criminal trial underscores the role of the affective--and its mutually constitutive relation to violent racism--in the continued vitality of HIV-criminalization law. Despite advances in the scientific understanding and medical treatment of HIV, appeals to notions of contagious leakiness and the viral impingement were the weapons of the state prosecutor. I conclude Part III with brief commentary on the successful appeal of Johnson's conviction in December 2016, considering both the unique legal posture that allowed Johnson to prevail and the consequences of this victory on Johnson's retrial. Finally, in Part IV, I conclude with a meditation on the larger consequences of HIV criminalization for Black queer men and on potential modes of resistance to the criminalization of the HIV-positive sexual subject.

1. Composing The Normative Fugue: On the Juridico-Affective As Critical Lens

   1. Theories of the Affective: To Act and To Be Acted Upon

      Questions concerning the critical potential of affect theory have become increasingly paramount within social-theoretical paradigms, and this burgeoning interest has resulted in various conceptual visions of the affective. Though these diverse articulations are unlikely to be rendered reconcilable and may even undermine one another, (17) their veering between coexistence and discordance illuminates a characteristic I find vitally immanent to affect: a tireless imperative toward movement through which the passage of intensities among bodies and worlds is realized. (18) With this core theoretic tenet in mind, I would like to sketch the notional topography of the affective as used in the proceeding analysis.

      At its most anthropomorphically envisioned and denotatively malleable, "affect" signifies the circuitry of force-relations generative of a body's unquantifiable capacity to act and to be acted upon. Affect may thus be understood as the multiplicity and movement of force-relations--"an impingement or extrusion of a momentary or sometimes more sustained state of relation as well as the passage (and the duration of passage) of forces or intensities." (19) It is within an intersubjective, dynamic field of rhythms, obstinacies, and vibrations that affect reiteratively places the body, and it is through this placement that affect reveals itself "as a gradient of bodily capacity--a supple incrementalism of ever-modulating force-relations--that rises and falls not only along various rhythms and modalities of encounter but also through the troughs and sieves of sensibility." (20) Ann Pellegrini and Jasbir Puar think of affect as "precisely what allows the body to be an open system, always in concert with its...