Cassidy Gardner is the founding member of QUEEROCRACY, a New York City-based grassroots organization that promotes social and economic justice through direct action, community engagement and education. They commit to challenging institutional injustice locally and globally within a queer framework, building a sustainable movement to confront and transform the intersecting issues our communities face. We sat down to talk with Cassidy about HIV Criminalization. Her roomie and fellow QROC member, Michael Tikili, put in a surprise appearance as well!
In the Flesh: Let me start by asking you how HIV is being criminalized, and when did that start?
Cassidy Gardner: HIV is being criminalized in a number of ways,
depending on the state. Many states criminalize non-disclosure, others
have laws against HIV positive folk spitting or biting someone. And then a
number of states use general felony laws to prosecute HIV transmission.
Even though it’s not just transmission it is punishable often just by failure to
disclose status to a sexual partner which will be deemed as intent to harm
regardless of what protective measure was or wasn’t used.
ITF: So it isn’t about lying—
CG: There are so few instances where lying is the issue. The focus on
lying leads someone to feel they are justified in their feelings of support
towards HIV criminalization.
ITF: So do you know when this kind of criminalization started?
CG: In the beginning years of HIV and was further enacted through the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act which first came into law in 1990.
ITF: What’s that?
CG: It’s the largest federal program that provides care and treatment to
people living with HIV.
ITF: Oh. Do we know why that happened?
CG: Initially the act required each state to ensure that its criminal laws
were sufficient to prosecute any person with HIV that knowingly exposed
another person to HIV.
ITF: Oh, okay. Do you know if there are certain organizations that are
behind criminalization, or supportive of it?
CG: No, I don’t know any organizations that are supportive of it. Frankly, a
lot of organizations won’t even touch the subject or make a statement on it.
ITF: Okay, so that was just put in place as part of funding for people with
HIV. In other words, it was introduced by the government without any kind
of lobbying group.
ITF: How long can you be in prison for not disclosing?
CG: It really depends on the state or territory but I believe the highest
number I’ve heard would be 25 years.
ITF: Statistically speaking, who is most heavily targeted by HIV
CG: People of color are the most disproportionately affected or more
particularly African American men.
ITF: Do you know why that is?
CG: Well we certainly know about the institutional racism embedded in
the criminal justice system targeted at black men that leads to so many of
these charges. In many ways you can see it as just another way of locking
them up. It’s heinous. It also connects to the stereotype of the HIV positive
black man infecting large populations of women ferociously that you see
framed often in the news.
ITF: I read on the SERO Project that it’s also because you are more likely
to be charged with HIV criminalization if you have regular contact with the
CG: Oh. That doesn’t surprise me at all, I don’t know.
ITF: What states have made not disclosing an HIV positive status illegal?
CG: 32 states and 2 U.S territories.
ITF: Is New York one of them?
CG: New York is not one of them, But that does not mean that people don’t
ITF: No, no I know I just think it’s good to know. What are your feelings on
CG: My feeling on disclosure is that it’s an equal responsibility between
you and your partner or partners.
ITF: It’s your responsibility to ask?
CG: It’s your responsibility to ask, it’s your responsibility to ensure that
every person feels safe and disclosure is important, dialogue is important
but you also have to understand that it’s a scary thing to have to disclose
your HIV status. Due to the violence inflicted upon positive people and the
stigma is still so relevant today and we can’t not think about that when we
think about criminalizing people who don’t disclose. Lying is another thing.
Forcefully infecting someone is a different thing but that rarely happens. So
these criminalization statutes aren’t really helping anything. Not when we
have the science and information that we have now. They’re useless. They
always have been.
ITF: Do you know of any other infectious life-threatening diseases that are
criminalized in this way?
CG: No. That’s the other thing too is that if you think about like HPV,
it causes a number of difference types of cancer yet there’s no law on
disclosing your HPV status. Around 80% of women by the age of 50
in America will have contracted at least one strain of genital HPV. But
HPV for the most part is not extremely associated with marginalized
ITF: Why do you think that is, do you think it’s because there’s such a
stigma? I mean it’s not like there’s not a stigma around HPV, but—
CG: Well there’s certainly less of one in comparison, I think we have a
lot of information about HPV, and we have a lot of information about HIV/
AIDS, and we think about what populations are hit hardest by the HIV
epidemic, it leads us to see that it revolves around sexuality, and racism,
homophobia and transphobia, drug use, anal sex —all things people
deem deviant and unacceptable and HPV doesn’t really have that stigma
attached to it.
ITF: I wonder why not though, because if it’s something that affects
women, especially women that don’t have access to—
CG: It certainly affects women at great rates that is absolutely true but the
stigma attached to it is not completely there.
ITF: I’m just wondering about what you were saying about the fact that
these laws went into place because of government funding being granted
to individuals with HIV and I wonder if that has anything to do with HPV
not being criminalized in that way, because they don’t receive the same
funding. Or do they?
CG: I don’t really know a lot about funding around HPV but it certainly
wouldn’t come from Ryan White. But if you think about the populations I
mentioned before that are most associated with HIV/AIDS, it’s gay men,
deviant sexualities, drug users, trans folk and people of color. Funding
for most of those populations is sparse especially when it comes to their
health needs and access to care. HPV affects a lot of folk from all different
identities and there has been a lot more funding put into cancer research
etc then with HIV/AIDS.
ITF: Is it mostly white women?
CG: I really don’t know but HPV does affect everyone, women and men
both get it at high rates and so do people of various races and sexualities.
ITF: Okay. How can people living with HIV be protected from being
prosecuted when the laws are the way they are currently?
CG: I mean nothing’s for certain but obviously proof of disclosure is a way
to fight it in court. So some organizations are coming out with a mock up
affidavits where, you know an organization that Queerocracy works with,
the SERO Project, they have affidavits that says you have proof that you
disclosed and both partners sign it. It’s just a way that you can—I mean
nothing is for certain, but if you have a video of disclosure, or a message, it
sounds silly but we use technology so much these days, that it can help. I
mean it’s sad that that would have to happen but…
ITF: Yeah, it just seems like another thing that would make the discomfort
around disclosing higher. Also just another thing to have to do, another
step, when we already have so much difficulty getting people to use
condoms, you know, it seems like a hard thing to have to integrate into
your sexual life, you know, sign this affidavit so I have proof that I told
you—Have you gotten any reaction to how that’s working?
CG: Not really no, I mean it’s not something that Queerocracy did, it’s
definitely something that came from the SERO Project, but we constantly
use their brochures to do educational workshops and things like that, so wherever we are we hand them out. New York doesn’t have a lot of HIVcriminalization cases, but it would be great to know if people are using those. Certainly I haven’t heard of anyone who’s been prosecuted who’s used it. It came out very recently. The SERO Project is very new as well.
ITF: Which to be clear is non-profit organization dedicated to combating
HIV stigma and criminalization.
ITF: So I read that the SERO Project put out a survey in which 42% of
cis-gender respondents and 47% of transgender respondents said it was
reasonable that people living with HIV would refuse treatment, for fear of
prosecution. Why would this be? What does seeking treatment have to do
with being vulnerable to arrest? Is it just because you are listed in some
database as having HIV?
CG: Totally. It’s proof that you know your status. That’s another huge issue
with HIV criminalization laws, that just by knowing your status, you are
more vulnerable to being prosecuted. So if you don’t know your status, you
can’t necessarily be prosecuted in the same way.
ITF: So it’s this whole weird flip of protection where it’s supposed to be
about making things safer for people so that the virus is harder to transmit,
right that’s the theory behind criminalization, I guess, But all it seems
to do is make people more scared to find out about their status, seek,
CG: Talk about it. It leads to a lack of conversation around HIV/AIDS which
is so crucial, especially in a city like New York. And even then New York
doesn’t have these laws and people are still insanely affected by them and
when they cross state borders they are subject to the laws of those other
ITF: Yeah that makes sense. We skirted around it earlier but let me ask
you this: Why do you think when the laws talk about safety they never
seem to be referring to the safety of the positive person?
CG: There’s always been a history of not talking about the safety of the
more oppressed population. The most vulnerable population’s access to
anything that would in anyway be helpful in terms of their health or general
well-being and I don’t think that’s different for people living with HIV/AIDS
either. Certainly of the most affected people include drug users, transfolk and sex workers and we all know that institutions like the law and police don’t really give a fuck about those people. So, you know, just thinking about that there’s an obvious link to how they conceptualize whose safety is more important, and there is still this societal perception that being HIV negative is linked to some sort of innocence and purity.
ITF: Higher morality.
CG: Higher morality and all those things, so yeah.
ITF: Do you think if we had a more open dialogue about sex and sexuality in the country, would these kinds of laws be able to be put into effect so easily? Would positive people have to answer to this kind of criminalization?
CG: Well yeah I mean it’s a huge starting point. We have to talk about sex.
I mean so many of us have sex [laughter] of course we have to talk about
it. Most of us want to have great, mind blowing sex so let’s make sure we
are talking about everyone when we’re talking about how to get there. So
yeah, I think it would be a really important next step, I think it’s insanely
important to talk about sex. And drug use. Because I think there’s a lot that
people still do not know about HIV/AIDS today and sometimes that has to
do with inability to access information and sometimes that has to do with
being scared to access information because of criminalization. Sex is a
scary word in this country.
ITF: So can you talk a little about some of the projects that Queerocracy is
working on to force this dialogue?
CG: Yeah, we do a lot of things. We hold press conferences, we are also
trying to pass resolutions in a bunch of states in the Northeast to be in
support of the Repeal HIV Discrimination Act, which was introduced by
Congresswoman Barbara Lee in 2011, which would have states review
laws that criminalize people with HIV and come up with some kind of
alternative or revise what they have on the books. So part of what we are
asking for that is asking for resolutions to be passed for that bill. We have
also taken direct action, doing protests like during the IAC we took over the streets with a huge amount of people. The HIV crim contingent was heavily organized by Queerocracy, and it was very successful. We had about 300 people involved in that messaging which was fantastic. Queerocracy’s ability to get younger people onto buses and bring them down into the streets shone a lot of light onto the issue. We’ve also held lectures and dialogues about it in colleges and high schools and the LGBT Center, anywhere that anyone asks us to come, we’ll be there. We’re just trying to make it a more comfortable thing for people to talk about.
ITF: What’s been the response when you do those talks?
CG: Well I would say that most of the people who show up to these events
are in some way already being affected by HIV/AIDS personally. Many
have had some sort of introduction into AIDS advocacy. I would say that
there are people that are fascinated but haven’t really had the conversation
before and then there are some people that come that are totally for
HIV criminalization and make a little bit of a scene during or after the
ITF: Have you been able to respond to those people?
CG: Well, you know, we’ve had people join Queerocracy who were pretty
opposed, and now aren’t—they joined after they went to these talks and
were like “Oh, maybe I don’t have all the facts, or maybe I need to rethink
the vast consequences of these statutes.” So that’s been really amazing.
Yeah there are some people that yell and then they leave. We’re not
gonna chase after them. There are always gonna be people that just don’t
ITF: Can you talk a little bit about David Plunkett’s case?
CG: So David Plunkett’s case took place in Herkimer NY even though
we don’t have HIV criminalization statutes he was convicted of biting a
police office (assault with a deadly weapon), the deadly weapon being his
HIV status. He was serving a ten year sentence. So we advocated for his
release because they kept pushing it back and back, so we went up there
and held a mini-press conference, and had a protest outside. We stayed
in touch with him, but he was also having a difficult time accessing his
medication in prison so that was something we were upset about. So we
organized call-ins. Right now he’s on parole, he’s been released, and we
are glad we could have some kind of role in that. He also had a really great
lawyer who’s very headstrong, a wonderful woman. So we stay in touch
with him and relay anything he has to say about the experience in any form we can especially to folks in NY who may think these things no longer happen here.
ITF: I ask about its significance because I read that the judge ruled that
you couldn’t be prosecuted for aggravated assault if you bite someone and
you are positive. Is that not a step forward?
CG: Within that case they did rule that an HIV positive person biting
another person does not in fact constitute a deadly weapon. But NY is a
state with no criminalization laws so this should have been a no brainer.
David still served what he did so I don’t see it as a step forward when it
shouldn’t have even been in question.
ITF: Oh, yes. That’s right that makes sense. Let’s look a little bit at the larger issues at stake. Do you see HIV criminalization as further criminalizing sex?
CG: Yeah! [laughs] It has a lot to do with sex. We criminalize sex in a lot
of ways. When people think about positive people and their sex lives, they
think about “deviant” behavior, they think about sex monsters I could go
on. They demonize it. This also has to do with sex workers as well. It has a
ton to do with criminalizing the kinds of sex that people aren’t comfortable
ITF: I just looked at this website called Shared Hope, do you know about
ITF: Shared Hope is part of the End Demand Campaign, which is all
about criminalizing everything from pornography to prostitution using the
idea that it’s all sex trafficking. So the whole idea is to stop sex or sexual
thoughts from happening by criminalizing them. So there’s all this Drug
Panic rhetoric that they use, you know, any sexual encounter only leads to
desire of more sex, and weirder sex and more uncontrollable kinky desire.
So pornography is like marijuana, it’s a gateway drug, the more you watch
it, the more likely you will be to have sex for money. So I just think there
are a lot of parallels on criminalization of sexuality. It seems ridiculous to
me, but then I’m always shocked about how easy it is to shame people
about their sexuality, to shame them into thinking this way.
ITF: What do you make of the fact that more than a quarter of new
infections of HIV are between the ages of 13 and 24?
CG: Let’s ask Mike.
ITF: Yeah let’s bring Mike into the conversation.
CG: Mike, come over here. This is Michael Tikili from Queerocracy.
The CDC came out with a statistic that more than a quarter of new HIV
infections are from 13-24. Why do you think that is?
Michael Tikili: Sex Education is horrible in this country. There’s a disconnect
between when people have sex and when people are being taught how
to safely have sex. I think we need to fix that as fast as possible. When
you think about it, kids start interacting sexually in junior high school, and
they don’t usually have Sex Ed until high school. And HIV is not going
anywhere. And people are never going to stop having sex. So until people
accept that, and start teaching kids at a younger age how to have safe sex,
and including queer safe sex as well, because a lot of sex ed isn’t geared
for queer people.
ITF: That’s an understatement.
MT: You have to go looking for it, essentially. And so I think a lot of young,
queer people are growing up not knowing how to have safe sex. Or even
knowing what safe sex is because it’s not a conversation that is had.
ITF: Thanks Mike! [laughter]
CG: Yeah, that’s about what I was going to say, too. Was that a US
statistic or no?
CG: Well I think it has a lot to do with not wanting to get tested. I mean
before I got tested I didn’t want to know. I was like ‘Who will I tell?’ or “who
will help me out?” I wouldn’t want to tell my parents at 13 or 14 years old.
But you know I had sex when I was pretty young and it’s a scary thing to
take an HIV/AIDS test. You know when we have death surrounding words
like HIV/AIDS, what’s the incentive to get tested?
ITF: Yeah. What kind of environment do you envision for making HIV
disclosure safer for a positive person?
CG: I think a lot of it depends on the individual. Well, obviously first thing
is an end to HIV criminalization. It’s certainly things like the Repeal HIV
Discrimination Act, things like that people are putting forward but that are
having a hard time passing. I think we need to start having conversations
about sex and HIV at a younger age.
ITF: Why is it having a hard time?
CG: Well let’s face it HIV criminalization has never been a hugely popular
topic in congress or anywhere not even within the AIDS activist and ASO
communities. A lot of people don’t want to talk about it and don’t want
to touch the subject. Secondly, because it directly involves marginalized
populations it most certainly just becomes a tougher issue to push through
congress and HIV/AIDS is no exception. While we’re advocating for this
act we also need to be pushing for other things like the Robinhood Tax or
the Financial Transaction Tax (FTT), funding for other lifesaving programs
like ADAP, HOPWA, PEPFAR and the Global Fund which will all help
towards ending HIV criminalization as well.
ITF: Thanks, Cassidy!
CG: Thank you, Ella [laughter].