BAY CITY — In early 1999, Michael S. Holder had just gotten out of prison where he had been serving time for retail theft and burglary since 1993. Although he was married, when a woman who was with a friend of his sent him a drink at a bar the three were visiting, he took the woman up on her offer.

The two became fast friends. So fast, in fact, by that spring, the woman and Holder had moved in together, sharing an apartment in a township just outside Bay City.

The two were intimate, sexually and emotionally connected.

In June 1999, the woman developed thrush, an infection of the mouth associated with HIV infection. She also, according to court transcripts, developed a rash on her body.

That relationship was rocky, with Holder saying it was on again and off again for months. In 2000, when he was in jail awaiting charges related to an allegation he was dealing drugs, the relationship went from rocky to an alleged perpetrator-victim relationship. He was accused of failing to tell his female friend that he was HIV positive before they had sex. He was arraigned on the charge in July 2000.

Holder tested positive for the virus in 1993 when entering the state prison in Jackson. At the time he was told his diagnosis, he said the description of the state law mandating HIV-positive persons disclose their status before engaging in sex, did not really apply to him.

“It never dawned on me,” Holder, who was paroled in December, said in an interview.

The Holder case — complete with a cast that includes an admittedly racially-biased jury, a scorned lover and a life-threatening virus surrounded more by fear than fact — is only one example of several prosecutions brought under a 1988 law that experts warn is overly broad and open to abuse.

“It [the Michigan disclosure law] could be used vindictively against populations that already stigmatized and that have experienced discrimination against them on the basis of HIV status,” said Lance Gable, an associate professor of law at Wayne State University who specializes in the intersection of the law and health care issues. “It can also be used to prosecute people for engaging in common human behavior.”

Viral inequality: A history lesson

To understand Michigan’s disclosure law, one has to understand the history behind the HIV epidemic. As documented in the prize-winning book “And the Band Played On,” by journalist Randy Shilts, HIV came to the forefront of the American mind in the early 1980s when a group of homosexual men began becoming sick from, and dying of, bizarre infections normally associated with animals or aggressive forms of usually non-aggressive cancers, such as Kaposi’s Sarcoma. The outbreak, which eventually became known as the HIV epidemic, came at a time when America was experiencing the birth of the religious right and was skittering to the right politically under the leadership of President Ronald Reagan. In fact, while the virus continued to claim lives, spreading through the gay community, intravenous drug users and blood recipients, the Reagan administration did virtually nothing.

The president himself did not mention the epidemic until 1987, when he ordered the creation of the President’s Commission on the Human Immuno-deficiency Virus Epidemic. That commission issued its final report in 1988. Among the nearly 600 recommendations, was recommendation 9-46. That recommendation encouraged states to pass HIV-specific criminal statutes imposing an “affirmative” duty on those infected with the virus to disclose their infection to sex partners.

From that recommendation, the Michigan legislature drew up MCL 333.5210, sexual penetration as felony. The law made it a felony to know that a person was infected with HIV and engage in any sexual act without first disclosing their HIV status to their partner. There is no law in state codes criminalizing the sharing of a needle without disclosure of HIV status.
Michigan’s Felony Disclosure Law was passed by the state legislature in 1988 and went into effect in 1989.

In 1990, the Ryan White Care Act required states receiving federal funds for the assistance of those impacted by HIV to certify the state had laws to prosecute HIV transmission. By the time the bill was sent for reauthorization in 2000, this mandate was removed, because 32 states had passed laws specific to HIV, and all 50 had certified they had criminal laws to address HIV transmission.

HIV is the only virus with a felony attached to it in Michigan. Those persons with human papillomaviruses, which have been linked to cancers, herpes, Hepatitis B and C, and other viral or bacterial infections are not required under state law to disclose their infection to potential sexual partners.

Michigan v. Michael Steven Holder

Holder went on trial, accused of violating the state’s HIV disclosure law in November 2001. Because the case was against a black man accused of failing to disclose his HIV status to a white woman with whom he was having a relationship, the court authorized the use of juror questionnaires to evaluate prospective jurors. During jury selection, five potential jurors were identified as having questionable beliefs about inter-racial relationships through their juror surveys. As a result they were put under oath and asked questions by the trial judge.

One juror informed the court in her questionnaire that “black men deal with hate or revenge with violence more so than other races.” She also told the judge that non-Caucasians committed more crime. That juror told the judge this view would not impact her view of the case.

Another juror informed the court she “did not care for inter-racial relationships,” and that “a person should stay within their own race.” In response to the questionnaire question: “The defendant in this case is a black man who is accused of having sex with a white woman without telling her that he had the HIV virus. Based upon this information, have you already formed an opinion about him and, if so, what is your opinion?” Two of the jurors said they thought the accused was guilty, with one writing:

“Yes. This is a deadly disease. He took her life into his hands by putting her at risk. He’s a horny coward.”

A third juror wrote in her questionnaire response that if a person was accused of a certain act, her response would be “I would say he is guilty.”

“Well, I feel that children would be a mixed breed,” a fifth juror told the court in explaining her discomfort with inter-racial relationships. “It’s just some — I think they might suffer down the road. Their children would be — don’t know if they’re — what breed they really are!”

Despite the inter-racial relationship that was at the heart of the case and the statements of pre-judgment, all five jurors were seated in the case of Michigan v. Michael Steven Holder.

Holder’s defense attorney and the prosecutor stipulated to the first element of the crime, that Holder knew he was HIV-positive. The stipulation was made because investigators had obtained a document signed by Holder in Jackson State Prison in 1993 which not only acknowledged he was HIV positive, but that he was aware of the disclosure law.

Holder’s ex-girlfriend had testified in a preliminary hearing in August 2000, and once again during trial, that Holder did not inform her of his HIV-positive status. In fact, she claimed, he had denied rumors that he had AIDS.

But then something happened.

The night she testified in court, Holder and the ex-girlfriend had a phone conversation, which was recorded by the Bay County Jail. During that conversation, Holder told the woman “I hope you know what you did. I just hope you know what you did, you know. That’s all I hope. I hope you know, you know, next year or the year after or the year after, you can’t take it back and say ‘well, I didn’t mean to say that’, you know. It’s — it’s done.”

The woman went to the prosecutor the next morning and informed her she had lied on the stand. The prosecutor put the woman back on the stand, where she proceeded to tell the jury that in fact, prior to any sexual activity, Holder had informed her he was HIV-positive. Her story directly supported the testimony Holder had given. The prosecutor asked her if she knew that HIV could lead to AIDS, and the woman testified that she did. She acknowledged lying to police investigators and on the stand.

The prosecutor argued that the ex-girlfriend’s recantation had been coaxed by Holder’s phone call from jail.

On Dec. 3, 2001, the jury of 11 white women and one white man — including the five jurors who noted their opposition to inter-racial relationships on their questionnaires — voted to convict Holder of violating the disclosure law. He was sentenced to 10-15 years in prison, three times the recommended sentence. That sentence was reduced in 2003 to 7 1/2 to 15 years because of an appeal that the state Attorney General’s office failed to respond to. But Holder’s pleas for justice in regard to incompetent counsel were denied by the Michigan Court of Appeals and the Michigan Supreme Court. A writ of Habeas Corpus filed in federal court was denied and is currently slated for a hearing in the U.S. Court of Appeals for the Sixth Circuit in June.

Bay County Prosecutor, Barbara Heyward did not respond to requests for comments on Holder’s case.

Advocates and law makers say its time to change the law

“By criminalizing sexual activity, it hasn’t been able to protect the public,” said State Sen. Hansen Clarke, a Detroit Democrat. “We’ve [the legislature] got to look at a different policy because the current one is not effective. It could be something counterproductive, but I have to research that more.”

Clarke’s assumption that disclosure laws are counterproductive to stopping the spread of HIV has been backed up by recent studies, including a study by Carol Galletly and Steven Pinkerton of the Medical College of Wisconsin’s Center for AIDS Intervention Research. That study, published in the journal AIDS & Behavior, concluded:

Twenty-three U.S. states currently have laws that make it a crime for persons who have HIV to engage in various sexual behaviors without, in most cases, disclosing their HIV-positive status to prospective sex partners. As structural interventions aimed at reducing new HIV infections, the laws ideally should complement the HIV prevention efforts of public health professionals. Unfortunately, they do not. This article demonstrates how HIV disclosure laws disregard or discount the effectiveness of universal precautions and safer sex, criminalize activities that are central to harm reduction efforts, and offer, as an implicit alternative to risk reduction and safer sex, a disclosure-based HIV transmission prevention strategy that undermines public health efforts. The article also describes how criminal HIV disclosure laws may work against the efforts of public health leaders to reduce stigmatizing attitudes toward persons living with HIV.

“As a general principle, we have a lot of concern about these laws,” said Bebe Anderson, HIV project director for the national organization Lambda Legal.

“It [the Michigan law] goes beyond the individual. These laws that criminalize on the basis of HIV status adds to the stigmatizing of people of HIV,” Anderson said. “They don’t seem to serve a good purpose. Often these laws are not really focused on risk behavior and that’s the problem with the Michigan law.”

Arguing that the Michigan law is too broad, Jay Kaplan, staff attorney for the LGBT project of the American Civil Liberties Union of Michigan, said a review of the law was due.

“I think it has been time to change the law since 1989,” he said. “It’s time to make the law as narrow as possible.”

“Certainly if the goal of the statute is to either deter people from engaging in behaviors that would spread HIV or to punish people who engage in those activities that the spread of HIV, it should be broader,” Gable said. “It shouldn’t just criminalize sexual behavior, and it should also be narrower because it should criminalize sexual behavior and other behavior that would actually pose a high risk of spreading the disease as opposed to this statute which defines sexual penetration in a very broad way that would encompass acts that were really not likely to spread the disease.”

Kaplan agreed with Gable, saying the law is so broad that it has been used to charge some one for mutual masturbation. He said it also does nothing to address attempts at safer sex, such as using condoms. This overly broad law, combined with a local prosecutor’s wide latitude in determining which cases to charge, opens the law up to abuse, Kaplan argues.

“It is better, more responsible for both partners to have a discussion,” Kaplan said. “I don’t think it [the law] encourages that kind of conversation.”

A recent Law Note in the Cornell Law Review also argued for the repeal of all HIV-related criminal laws. In the paper, the author argues that the laws do nothing to address the current realities of HIV, including the knowledge of likelihood of transmission based on certain behaviors, medical intervention with anti-retrovirals and other factors. The author argues that current, traditional criminal laws can and should be used to prosecute and find criminal liability in HIV transmission cases.

State Sen. Samuel Buzz Thomas, a Detroit Democrat, toyed with the idea of introducing legislation to expand the disclosure law to include persons infected with Hepatitis B and/or C last session. But the legislation was never introduced, his chief of staff Dennis Denno said. Thomas declined multiple requests for an interview on this topic.

“It makes a lot of sense to eliminate this type of provision and focus any kind of prosecution in general criminal law statutes where you can still go after a person who intentionally tries to infect a person with HIV,” Gable said. “It would certainly be harder on the prosecution to get that kind of conviction under the general statutes. But that kind of case is more rare and is distinct from the kinds of cases that could be brought under this statute, which really doesn’t achieve the goal of preventing the spread of HIV.”

“These laws are a blunt instrument being used to address a complicated matter medically,” said Lambda Legal’s Anderson, “but also are a complicated matter in the nature of sexual relationships.”