A metro Detroit man is facing felony charges under the state’s HIV disclosure laws after being arrested for driving under a suspended license because the arresting officer notified the man’s ex-girlfriend that he was HIV-positive, in apparent violation of state law.

The 31-year-old man agreed to speak exclusively to Michigan Messenger about the potential case, his journey with HIV and his battle with stigma since his diagnosis in 2007. His identity and location are being obscured because he admits to engaging in sexual relations with the ex-girlfriend without disclosing his status, a felony in Michigan.

Noah’s Story

On a Friday in late July, Noah (not his real name) was driving in Michigan’s Branch County when he was pulled over by a Michigan State Trooper. He was driving on a suspended license. The suspension arose from a driving while under the influence charge earlier in 2010. As a result, Noah was arrested, and taken to the Branch county jail.

During his transport to the jail, Noah says he was worried about having access to his anti-retroviral medications. It was late on a Friday, and he thought it was quite possible he might not see a judge until Monday morning, meaning he would spend the weekend in jail.

Noah found out he was HIV-positive when he was in an alcohol treatment center in 2007. At the time of his diagnosis, the virus was running rampant, trashing his immune system and proliferating in his blood. Infectious disease specialists put him on anti-retroviral medications, and his virus was quickly beaten down to an undetectable level, and his immune system began to reconstitute itself.

But Noah, like most people on the medications, knew that even a couple of days without the medications could allow the virus time to develop immunity to the medications. He didn’t have the medications with him, and he wanted to make sure he would not miss a dose. So he told the trooper who had arrested him of the urgency in seeing a judge as soon as possible to get a bond and post it.

“He asked me if Susan (not her real name) knew about my infection. Because we had broken up, I told him we didn’t have that kind of relationship so she didn’t need to know,” Noah told Messenger. He said he thought nothing more of the inquiry from the trooper.

While being booked into the Branch county jail, he told the booking officer of his HIV status and medications as part of the medical inquiry all jails conduct with arrested individuals. Jails are required to make sure those who require prescriptions have access to those medications.

He was placed in a cell, and shortly thereafter the trooper came back to see him.

“He told me I was going to see a judge and I would get a bond that day,” Noah said. “Then he asked me for Susan’s number. I thought he was going to call her and inform her about what was going on with the arraignment and bond.”

After he underwent a video arraignment — having a $1,000 bond set with a 10 percent surety — Noah called a family member who posted the bond, then called Susan. She was in tears, driving away from Branch county, having been informed of Noah’s HIV-positive status by the trooper.

Noah convinced Susan to return to Branch County and pick him up, and the two had a labored conversation, filled with silences and tension, on the two hour drive back to the Detroit metro area. Susan told Noah that the trooper had informed her she could and should file a criminal charge against him. She was furious, Noah said, for his lies.

The two broke up completely over the disclosure and went their separate ways. The weeks turned into months and Noah heard nothing about criminal charges. Then there was a message from a metro Detroit county sheriff detective asking him to come in and tell his side of the story because she had filed a complaint. He ignored the call. Then three weeks ago, the detective called and informed him the prosecutor’s office had gotten an order from a judge for the police to get a sample of his blood.

“He told me I could come in voluntarily, or he could send in the fugitive apprehension team,” Noah says of the discussion. “He called them the door busters. He said the door busters would show up in the middle of the night and kick in the door and arrest me.”

The arrest, he said the detective told him, would be executed on outstanding warrants for driving without a license. Noah readily admits there are three of them in the state system. So two weeks ago, he met the detective at a health department where his blood was drawn, per the search warrant. He agreed to do so if the detective agreed not to arrest him on the outstanding warrants.

Now, Noah is waiting for the blood test to be returned, and the likely felony warrant which will surely follow.

Neither the Michigan State Police nor Susan returned telephone calls seeking comment for this story.

Experts in legal issues weigh in

“Michigan’s HIV Confidentiality Law MCL 333.5131 prohibits the disclosure of a person’s HIV test results without the express authorized permission of the person who has tested positive. There are a number of exceptions under the statute,” said Jay Kaplan for the American Civil Liberties Union of Michigan’s LGBT Project. “For instance a person can disclose to the health department or a health care provider in an effort to prevent further transmission of HIV. In addition, a physician or the Health Department can also disclose to the contact of an individual who is HIV, if it is determined necessary to prevent reasonably foreseeable risk of further transmission of HIV. This person shall not identify the HIV+ person by name unless it is determined that this information is reasonably necessary to prevent a foreseeable risk of transmission. What the trooper allegedly did does not fall under these statutory exceptions. If he was concerned about the foreseeable risk of further transmission he could have notified the local health department and then they could have contacted the girlfriend.”

Catherine Hanssens, director of the Center for HIV Law and Policy in New York City, also expressed concerns about the process under which Noah came to face charges. Hanssens said she thinks the warrant should have been challenged, and Noah should never have submitted to it without an attorney consultation. Unfortunately, Noah says, he is unemployed and can’t afford an attorney.

“The second (concern) is the obvious need for a different kind of communication and collaboration between public health departments and law enforcement agencies. It is the responsibility of the former to ensure that the latter understand and follow state laws which protect the confidentiality of HIV-related information,” said Hanssens. “State and local health officials should publicly insist on sanctions against other government entities that do not follow the law. Refusal to follow the law sets, I might add, a particularly poor example when engaged in by law enforcement agencies.”

Hanssens and her organization released a comprehensive legal guide in November looking at every HIV-specific criminal law in the United States, as well as the case law behind each law. The group also created and launched the Positive Justice Project.

This is not the first time disclosure of an HIV-positive status by law enforcement has become an issue in Michigan. In summer 2008 the Lansing City Attorney, Brigham Smith, came under fire when he released a police report that did not redact the HIV status of a man arrested in a sex sting operation. Advocates argued the disclosure violated state public health laws, but the attorney said that was untrue. The controversy led Lansing Mayor Virg Bernero to ask Republican Attorney General Mike Cox to weigh in on the case.

The AG’s office issued a determination that the public health code was not violated, thus exonerating the city attorney of wrongdoing. The ruling further indicated release of private medical information contained in police reports was not necessarily covered by the Freedom of Information Act law which allows pubic body’s to prohibit the release of information which is a “clearly unwarranted invasion of privacy.” The AG’s office determined that releasing or redacting the information were both acceptable options for public bodies.

In addition to the legal issues, Kaplan said, “This scenario raises issues concerning medical privacy. When someone arrested shares medical information with the law enforcement officers, they should be able to do so with the knowledge this medical information will remain confidential. In the context of HIV, we have a specific statute that protects the confidentiality of this information, and does not exempt law enforcement officers.”

The Michigan Positive Action Coalition, an advocacy group of HIV-positive people in the state, also weighed in on the brewing case.

“It appears as the HIV-positive individual disclosed their HIV status in order to ensure adequate access to medications. This was not a forfeiture of his rights and will do more to scare HIV positive people away from disclosure,” said Mark Peterson, a spokesperson for MIPOZ. “It appears as though the arresting officer violated state law in his breech of the HIV-positive individual’s status. It’s sad to think that this could have been done simply because HIV-positive people are seen as ‘less than’ and not subject to the same legal protections of others. Laws that criminalize people with health concerns can never be part of a supportive or curative health care system and serve only to tarnish the reputation of our justice system.”

Hanssens also challenges the need for a blood sample months after the alleged failure to disclose.

“Since the statute relies on a person’s knowledge of HIV status at the time of the incident in question, a blood test conducted after the incident is irrelevant — it reveals nothing about the two relevant inquiries under Michigan law, i.e., 1) whether the defendant was aware of his/her HIV status at the time of the contact in question, and 2) whether the defendant notified the partner of the defendant’s HIV status in advance of that contact,” Hannsens said.

All of the advocates agreed that it is time to change Michigan’s disclosure law.

“Michigan’s HIV criminal sexual conduct statute, rather than encouraging a dialogue between two consenting adults regarding sex, puts the onus on the person who is HIV positive to proactively disclose his/her status,” says Kaplan. “The statute is overbroad in that the definition of sexual penetration includes activity that would not transmit HIV. It stigmatizes the HIV positive person, labeling him/her a criminal for some behaviors that do not or would not transmit the virus.”

“I think this is another example of the individual living with HIV being criminalized simply because he or she has a virus,” says Peterson of MIPOZ. “Laws that criminalize people with health concerns can never be part of a supportive or curative health care system and serve only to tarnish the reputation of our justice system. Surely someday HIV laws will be written with respect to science and not fear or misinformation. But it doesn’t seem like that day is coming soon, at least here in Michigan.”

Hannsens of the HIV Law and Policy Center was even more blunt.

“Finally, the law in Michigan is absurd,” says Hanssens. “[It] bears no rational relation to the actual causes and risks of HIV transmission and the epidemic in this country, and is a public health disgrace.”