Columbia Journal of Gender and law 11735.1

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

JOSEPH F. LAWLESS*

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 

© 2017 Lawless. This is an open access article distributed under the terms of the Creative Commons Attribution 
License, which permits the user to copy, distribute, and transmit the work provided that the original author(s) 
and source are credited.

*  Ph.D., American Studies, College of William & Mary, expected May 2022; J.D., Columbia Law School, 
May 2017; B.A., University of Pennsylvania. I extend the most heartfelt thanks to Professor Patricia Williams 
and Professor Bernard E. Harcourt of Columbia Law School for their exceptional mentorship, generous 
comments on prior drafts of this Article, and endless support. Thanks are also extended to Professor Khiara 
M. Bridges of the Boston University School of Law, to Matthew Sauter and Sarah Armenia for thoughtful 



Columbia Journal of Gender and law118 35.1

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 

comments, and to the Editorial Board of the Columbia Journal of Gender and Law for their efforts. Finally, 
I thank Samuel Buffaloe, appellate counsel for Michael Johnson, and all those persons who have actively 
contested the injustice Johnson has been forced to bear; your work and Johnson’s courage have forced a wedge 
into the blinding machine of HIV criminalization. 

1  Steven Thrasher, How College Wrestling Star “Tiger Mandingo” Became an HIV Scapegoat, BuzzFeed 
(July 7, 2014, 9:00 PM), https://www.buzzfeed.com/steventhrasher/how-college-wrestling-star-tiger-mandingo 
-became-an-hiv-scap [https://perma.cc/8F9M-6G2M] [hereinafter Thrasher, College Wrestling Star].

2  Id. (“The student at Lindenwood University in the St. Louis suburb of St. Charles quickly recognized that 
in real life, Tiger Mandingo was also a student at his school: Michael Johnson, a recent transfer student on 
Lindenwood’s wrestling team.”).

3  Id. (“This time, they had anal sex without a condom.”).

4  Although his purpose is to reflect the racialized and class-based inflections undergirding sexual linguistic 
economies, Marlon M. Bailey provides a definition of the term “raw sex” that, because of its (assumed) 
synonymy with the term “bareback sex,” provides useful, if not somewhat reductive, clarity: “‘[R]aw sex’ 
is anal intercourse (insertive and receptive) without a condom and with or without anal receptive ejaculation 
and semen exchange.” Marlon M. Bailey, Black Gay (Raw) Sex, in No Tea, No Shade 239, 244 (E. Patrick 
Johnson ed., 2016). Bailey emphasizes the different connotative valences of the words “raw” and “bareback” 
to elucidate “the ways in which [B]lack gay men are confronted with regimes of racial, gender, and sexual 
normativity,” but his definitional exegesis of raw sex offers a useful denotative heuristic for this discussion. 
Id. at 248.

5  Thrasher, College Wrestling Star, supra note 1 (internal quotation marks omitted); see also id. (“‘I let him 
come in me,’ the student said. He wanted bareback sex, he said, because Johnson was ‘huge,’ ‘only my third 
black guy,’ and—as he said Johnson told him yet again—‘clean.’”).

6  Id.



Columbia Journal of Gender and law 11935.1

[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 

7  Id.

8  Steven Thrasher, A Black Body on Trial: The Conviction of HIV-Positive “Tiger Mandingo,” BuzzFeed 
(Nov. 30, 2015, 8:26 PM), https://www.buzzfeed.com/steventhrasher/a-black-body-on-trial-the-conviction-of-
hiv-positive-tiger-m [https://perma.cc/TB3J-8LFZ] [hereinafter Thrasher, Black Body on Trial] (noting that 
Johnson mentioned having “spent months in solitary confinement, not even allowed to go to church,” as he 
awaited the beginning of his trial).

9  Id. (“[The jury] found Johnson guilty of recklessly transmitting HIV to [one of the named victims] and of 
exposing or attempting to expose [four] other men to HIV”).

10  Id. (“It took the jury about an hour to return with a sentence. . . . [T]he jury [had] condemn[ed] Johnson 
to 30 years in prison for HIV transmission . . . [and] an additional 30.5 years of sentencing for three counts of 
exposure and one attempt to expose to HIV.”).

11  Id.

12  See generally RaShida RichaRdSoN, ShoShaNa GoldeN & caTheRiNe haNSSeNS, 1 eNdiNG & deFeNdiNG 
aGaiNST hiV cRimiNalizaTioN: a maNual FoR adVocaTeS 269–91 (2d ed. 2015) [hereinafter RichaRdSoN 
eT al., eNdiNG & deFeNdiNG aGaiNST hiV cRimiNalizaTioN] (compiling a list of over two-hundred arrests 
and prosecutions in the United States for HIV exposure between 2008 and 2014 but noting that “the cases 
represented . . . do not constitute an exhaustive representation of all HIV-related prosecutions in the U.S., but 
are likely only a sampling of a much more widespread, but generally undocumented, use of criminal laws 
against people living with HIV”).



Columbia Journal of Gender and law120 35.1

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. 

13  See, e.g., Kim Shayo Buchanan, When is HIV a Crime? Sexuality, Gender and Consent, 99 miNN. l. ReV. 
1231, 1233–35 (2015) (noting that nondisclosure laws, in existence since the early 1990s, have consistently 
survived constitutional challenges and that, despite the federal government’s recent questioning of the utility 
of HIV criminalization, states have generally refused to repeal their HIV-criminalization laws); Joseph Allen 
Garmon, Comment, The Laws of the Past Versus the Medicine of Today: Eradicating the Criminalization 
of HIV/AIDS, 57 howaRd l.J. 665, 669–78 (2014) (documenting the legislative response that followed the 
exponential rise in HIV infections and AIDS-related deaths in the late 1980s and early 1990s as well as 
examining the history of state statutes criminalizing nondisclosure).

14  Gregory J. Seigworth & Melissa Gregg, An Inventory of Shimmers, in The aFFecT TheoRy ReadeR 1, 2 
(Melissa Gregg & Gregory J. Seigworth eds., 2010) (emphasis in original).

15  John Protevi, Ontology, Biology, and History of Affect, in The SpeculaTiVe TuRN: coNTiNeNTal maTeRialiSm 
aNd RealiSm 393, 394 (Levi Bryant, Nick Srnick, & Graham Harman eds., 2011).

16  JaSBiR puaR, TeRRoRiST aSSemBlaGeS: homoNaTioNaliSm iN QueeR TimeS 207 (2007).



Columbia Journal of Gender and law 12135.1

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. 

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

A.  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 

17  See Seigworth & Gregg, supra note 14, at 7 (“[We] can tentatively lay out . . . eight of the main orientations 
that undulate and sometimes overlap in their approaches to affect. Each of these regions of investigation . . . 
highlights a slightly different set of concerns, often reflected in their initiating premises, the endpoints of their 
aims, or both.”); Ruth Leys, The Turn to Affect: A Critique, 37 cRiTical iNQuiRy 434, 468 (2011) (critiquing the 
appropriation of neuroscience research by scholars who marshal its conclusions to “invariably privilege[] the 



Columbia Journal of Gender and law122 35.1

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 virtuality, the potential of becoming.”21 In concert with 
Puar and Pellegrini’s definition, I would argue that, insofar as it is bound to potentiality, 
affect is necessarily accretive, inscribing through its movement the uneven consequences 
of force-relations that cohere and corrode the embodied subject.

A particularly lucid, digestible synthesis of affect study’s dominant traditions can be 
found in Neel Ahuja’s Bioinsecurities: Disease Interventions, Empire, and the Government 
of Species. Eschewing accounts of affect that separate the mind from the body and the 
social from the biological, Ahuja advances an approach to the affective “that not only 
encompasses the forms of interface situated within the nervous system, but explicitly 

‘body’ and its affects over the ‘mind’ in straightforwardly dualist terms,” effectively reinscribing the Cartesian 
dualism such scholars purport to be deconstructing).

18  See GilleS deleuze, SpiNoza: pRacTical philoSophy 48–49 (Robert Hurley trans., 1988) (“These [affects] 
are necessarily active . . . . [F]rom one state to another, from one image or idea to another, there are transitions, 
passages that . . . are not separable from the duration that attaches them to the preceding state and makes them 
tend toward the next state. These continual durations . . . are called ‘affects.’”). Deleuze’s reading of Spinoza 
interprets affect as that which is in constant metamorphosis; affect is accordingly not a particular state of being 
but instead an ongoing becoming between states.

19  Seigworth & Gregg, supra note 14, at 1 (emphasis in original).

20  Id. at 2.

21  Ann Pellegrini & Jasbir Puar, Affect, 27 Soc. TexT 35, 37 (2009).



Columbia Journal of Gender and law 12335.1

connects the materials of the nervous system”22 with those “bodily sensations and public 
feelings . . . cultivated in media, in war, in technology, in formal political debate and 
organizing, and in the organization of social space.”23 His intervention radically disregards 
the idea that affect exclusively concerns the passage of intensities within and across human 
bodies. The flow of affect is thus not limited to the envelope of the skin and identifiable 
cellular receptors; to this end, Ahuja considers affect in its totality to engage “the capacity 
of machines and bodies to affect and be affected, to sense, interact, connect, differentiate, 
move, and transition in a lifeworld.”24 

Embedded within Ahuja’s theorization of affect are three additional conceptual 
coordinates that, if more expressly teased out, can further solidify the normative 
foundations of the below discussion. First, Ahuja frames affect in dynamic, processual 
terms.25 Affect is always in flight, and although materializing within and through the 
subject it is never bound to the subject in her singularity. Second, in accord with Lone 
Bertelsen and Andrew Murphie’s engagement with the question of affect, Ahuja highlights 
the subtle yet transformative complexities of affective circulation, which effect a kind of 
“folding of broader affective intensities into the nervous system [that] eventually [become] 
recognizable as the register, eventually the representation, of the ongoing folding of self and 
world, as the person.”26 This is the site at which the affective qua bodily sensation bears out 
its relation to emotion, with which it is not synonymous but to which it may be connected. 
Emotions often trigger bodily changes, but such physical transformations, however 
fleeting, are as likely to be caused by affective resonances as they are by emotions. Third, 
Ahuja emphasizes the Spinozist character of affect, suggesting that its very circulation may 
result in its reproduction, augmentation, and manipulation.27 This third aspect represents 

22  Neel ahuJa, BioiNSecuRiTieS: diSeaSe iNTeRVeNTioNS, empiRe, aNd The GoVeRNmeNT oF SpecieS 16 (2016).

23  Id.

24  Id. at 15.

25  See id. at 16–17 (“The transfer of affective potential from digestive and immune systems to mass-mediated 
publics (the mass national nervous system) and back may follow any number of different pathways, through the 
laboratory, media, environment, or the body itself.”).

26  Lone Bertelsen & Andrew Murphie, An Ethics of Everyday Infinities and Powers: Félix Guattari on Affect 
and the Refrain, in The aFFecT TheoRy ReadeR 138, 140 (Melissa Gregg & Gregory J. Seigworth eds., 2010) 
(emphases removed).

27  See ahuJa, supra note 22, at 26 (“The energies of bodies and populations often spill beyond structures of 
containment, opening up unexpected effects elsewhere in biopolitical formations, demonstrating that material 
affects of intervention work to both incorporate and regenerate imperial form, often moving outside the confines 
of the direct goals or ideologies of intervention.”).



Columbia Journal of Gender and law124 35.1

the fulcrum along which affect unendingly oscillates between the politically public, or the 
collective, and the politically private, or the subjective. 

B.  The Grid of Juridico-Affective Intelligibility: Bodily Surfaces, Legal 
Depths

The theoretic cartography of affect I have just sketched is an obviously fragmentary 
one, as it privileges the enumeration of what I deem affect’s fundamental attributes without 
a method for determining why those attributes have come to be fundamental—a question 
of the historical situatedness of affect and its intelligibility. By this, I mean to suggest 
that, within the context of this discussion, my development of the conceptual boundaries 
of “affect” must include an engagement with the sociohistorical production of those very 
boundaries; in effect, the index of this account’s theoretical import should turn on whether 
it exhibits a sensitivity to the granular and historically specific particularities of law’s 
exploitation of affect vis-à-vis HIV-criminalization jurisprudence. What I am describing 
is a reflexive obligation to assess the historicity of affect and its production, a tenet of the 
Foucauldian genealogical method.28 One could offer a truncated summary of Foucauldian 
genealogy by turning to its animating inquiry: “How have domains of knowledge been 
formed on the basis of social practices?”29

The political stakes of genealogical inquiry, when taken at their most fundamental, 
concern the dangerous union forged between the disqualification of subjugated knowledges 
and the exercise of dominating social power such disqualification bulwarks.30 Foucault 

28  See Michel Foucault, Nietzsche, Genealogy, History, in michel FoucaulT: aeSTheTicS, meThod, aNd 
epiSTemoloGy 369, 370 (James D. Faubion ed., Robert Hurley et al. trans., 1998) (arguing that genealogy 
“rejects the metahistorical deployment of ideal significations and indefinite teleologies” and “opposes itself to 
the search for ‘origins’”); id. at 371–72 (“What is found at the historical beginning of things is not the inviolable 
identity of their origin; it is the dissension of other things. It is disparity.”); Michel Foucault, Two Lectures, in 
poweR/KNowledGe: SelecTed iNTeRViewS aNd oTheR wRiTiNGS, 1972–1977, at 78, 85 (Colin Gordon ed., Colin 
Gordon et al. trans., 1980) [hereinafter FoucaulT, Two Lectures] (“By comparison, then, and in contrast to the 
various projects which aim to inscribe knowledges in the hierarchical order of power associated with science, 
a genealogy should be seen as a kind of attempt to emancipate historical knowledges from that subjection, that 
is, capable of opposition and of struggle.”).

29  Michel Foucault, Truth and Juridical Forms, in Power: eSSeNTial woRKS oF FoucaulT, 1954–1984, at 1 
(James D. Faubion ed., Robert Hurley et al. trans., 2000) [hereinafter FoucaulT, Truth].

30  See FoucaulT, Two Lectures, supra note 28, at 82 (“Subjugated knowledges are thus those blocs of 
historical knowledge which were present but disguised within the body of functionalist and systematizing 
theory and which criticism . . . has been able to reveal.”); id. (offering a second notion of subjugated knowledges 
as those “that have been disqualified as inadequate to their task or insufficiently elaborated . . . and which owe[] 



Columbia Journal of Gender and law 12535.1

contends that it is through the legitimation of particular schemas of knowledge, whose 
capricious instantiation a genealogical investigation documents, that manifold forms of 
social subordination crystallize and polymorphous techniques of subjugation materialize, 
all bearing the emblem of violent urgency.31 Genealogical analysis leverages a nuanced 
exhumation of subjugated knowledges to expose the arbitrary process of transformation 
whereby certain knowledges become the absolute “truths” of a sociopolitical order.32 By 
successfully repudiating the privileged hierarchy of knowledge creation, Foucault made 
space for the provocation that the success of a critical interrogation of “truth” required 
dismissing the transcendental character long ascribed to knowledge. The radical potential 
of genealogy was thus found at the juncture of truth’s proliferation and power’s application: 
“There can be no possible exercise of power without a certain economy of discourses of 
truth . . . . We are subjected to the production of truth through power and we cannot exercise 
power except through the production of truth.”33 The method underscores the inextricable 
and mutually constitutive relation of power and knowledge. Axiomatic to genealogy 
therefore is an orientation toward critique premised on the plenary eclipse of the social 
world by “techniques of knowledge and strategies of power;”34 there can be no position of 
exteriority vis-à-vis power and knowledge, as the two operate in tandem to produce objects 
of investigation and investment. 

The brief digression from the historicity of affect’s exploitation by law sought to 

[their] force only to the harshness with which [they are] opposed by everything surrounding [them]”); id. at 85 
(characterizing the approach of genealogical inquiry as “based on a reactivation of [subjugated] knowledges . . 
. in opposition to the scientific hierarchisation of knowledges and the effects intrinsic to their power: this, then 
is the project of these disordered and fragmentary genealogies”).

31  See id. at 93 (“[T]here are manifold relations of power which permeate, characterise, and constitute the 
social body, and these relations of power cannot themselves be established, consolidated nor implemented 
without the production, accumulation, circulation and functioning of a discourse.”).

32  In the lecture series entitled Truth and Juridical Forms, Foucault remarks that the objective of his 
intervention will be to elucidate “how social practices may engender domains of knowledge that not only bring 
new objects, new concepts, and new techniques to light, but also give rise to totally new forms of subjects and 
subjects of knowledge.” FoucaulT, Truth, supra note 29, at 2. He suggests that the question of history is one 
that can be employed to interrogate far more than the history of the subject; ultimately, his analysis seeks to 
demonstrate that “truth itself has a history.” Thus his crisp summation of the ensuing analysis: “What I intend 
to show in these lectures is how, in actual fact, the political and economic conditions of existence are not a veil 
. . . for the subject of knowledge but the means by which subjects . . . are formed, and hence are truth relations.” 
Id. at 15.

33  FoucaulT, Two Lectures, supra note 28, at 93.

34  michel FoucaulT, 1 The hiSToRy oF SexualiTy: aN iNTRoducTioN 98 (Robert Hurley trans., 1978).



Columbia Journal of Gender and law126 35.1

identify a foundational point of departure from which this discussion could situate its 
own critical examination of HIV-criminalization jurisprudence’s appeals to the affective. 
Despite the enormously varied manifestations of law and modes of its application, HIV-
criminalization jurisprudence represents a distinctive nodule in the law’s larger matrix. My 
analysis will take the HIV-criminal regime as its primary object, one that is constituted by 
internal rules that condition its materialization, and, insofar as I will argue that affect is 
one such condition of this materialization, HIV-criminalization law may be characterized 
as a specific discourse, the site where “power and knowledge are joined together.”35 This 
bond, which Foucault aptly names “power-knowledge,” is not a site of stasis but rather one 
of transformation; as discourse proliferates, it undergoes endless metamorphosis, always 
being shaped in response to the episodic confrontations they encounter.36 The continuity of 
HIV-criminalization law and the banality with which its discourse is met underscore that no 
singular form of “affect” can be identified; rather, affect’s iterative multiplicity and infinite 
possibility for adaption permeate the discursive logics of HIV criminalization, working 
through multiple modalities while also nesting within the protective confines of the law. 
To provide a provisional account of affect’s generative role in the maintenance of the HIV-
criminalization regime, I offer the notion of the “juridico-affective” as a heuristic with 
which to trace the intermingling of HIV-criminalization law and the affective, as well as to 
chronicle the circuitry of subjectification and subordination precipitated as its consequence.  

The substantive dimensions of the juridico-affective I offer here are intended to 
represent the contents of neither a methodology nor a theory of universal applicability. 
Instead, the juridico-affective offers an analytic mode through which to conceptualize the 
hazardous implications engendered by the appropriation of affect by HIV-criminalization 
discourse. Appeals to the juridico-affective in the discourse of HIV criminalization work 
to configure the sexually active HIV-positive subject as pathologically criminal and as a 
reservoir of viral contagion and deadly ecologies. The hyperbolic focus on viral bloom 
within the HIV-positive subject’s body slowly transforms this persistent rhetoric of 
contagion into one of significant bodily danger to both the HIV-positive subject and those 
around him. Ultimately, the subtle ubiquity of the juridico-affective and its concomitant 
sensations of violation, infection, and impurity inaugurate the personification of HIV as 
agent. In so doing, the discourse of HIV criminalization denies the very humanity of the 
HIV-positive subject brought before the law, forcibly emptying the subject of his agency to 

35  Id. at 100.

36  See id. at 98–102 (advancing four cautionary prescriptions to inform an analysis of power, knowledge, 
and discourse, all of which emphasize the multiplicity, instability, and constant reproduction of discursive 
frames through the intermingling of knowledge and power).



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align with the possession imagined at the hands of HIV.  

Before moving into my discussion’s substantive argument, I believe that a brief 
explanation on the semiotic configuration of “juridico-affective” is required, both to ensure 
the clarity of my theoretical interventions and to foreground the appalling implementation 
of HIV-criminalization law. My choice to attach via hyphen the term “juridical” (which is 
not to be read as either a synonym for law or its conceptual opposite) to the word “affective,” 
which may appear redundant, is not a means to rhetorically double the claims I make. 
What must be recognized about the regime of HIV-criminalization regime is that, even 
within the typology of criminal law, HIV-related penal measures command a disturbing 
exceptionalism in the form punitive excess. The regime of HIV-criminalization conflates 
and fuses the myriad and presumptively disparate modes of law-based domination, thus 
melding transgression-based sanctions, the disciplinary regulation of the individual body, 
technologies of biopolitical governmentality, and the transformation of law into a conduit 
for the relay of subjects between various sites of governmentalized discipline and absolute 
control. While the idea that the law operates through a “juridical matrix” is certainly an 
anachronism, HIV-criminalization jurisprudence turns that antiquated model on its head 
by activating a vertiginous engagement with law as the snake-haired gorgon—that which 
employs modes of legal regulation and criminal prohibition that both exemplify the current 
moment and cannot be reconciled with that moment’s ethos.  

II.  The Personifying Cantata of HIV Criminalization: Tracing the Effects of HIV-
Criminalization Law Through the Juridico-Affective

In the prior Part, I provided an overview of the methodological and theoretical 
architecture necessary to the development of this discussion’s primary contentions. Building 
upon this foundation, I introduce in this Part the legal context of the HIV-criminalization 
regime, beginning with the federal legislation that mandated the passage of HIV-related 
penal law at the state level. I then review two such state criminal statutes, both of which 
typify the content of state penal statutes enacted to criminalize sexually active HIV-
positive persons. These statutes depend upon the intelligibility of the juridico-affective 
to configure the HIV-positive sexual subject as a reservoir of viral contagion and gross 
promiscuity. Then, I turn to three juridical opinions all addressing appeals of successful 
convictions under HIV-criminalization laws. My purpose is to identify the juridico-affective 
maneuvers the opinions effect to reinforce the perception of the HIV-positive subject as 
always already pathologically criminal. Finally, I bring these jurisprudential coordinates 
together to document the role of juridico-affective discourse in the personification of HIV 
as homicidal monster.



Columbia Journal of Gender and law128 35.1

A.  The Enactment of the Ryan White CARE Act and the Codification of HIV 
Criminality

In the early 1980s, Ryan White, a teenager living in Indiana, was accidentally infected 
with HIV during a blood transfusion, a routine treatment for White’s hemophilia.37 White’s 
subsequent death due to the immuno-compromising effects of Acquired Immune Deficiency 
Syndrome (AIDS) reoriented the national dialogue around HIV/AIDS and incited a fervor 
for political action at the national level.38 Mounting social pressure eventually led Congress 
to pass the Ryan White Comprehensive AIDS Resources Emergency Act,39 known also as 
the CARE Act, in 1990, the purpose of which was “to provide emergency assistance to 
localities that are disproportionately affected by the [HIV] epidemic and to make financial 
assistance available to States” for the development and delivery of therapeutic care.40

As initially enacted, the CARE Act conditioned the receipt of federal funding on state 
codification of penal laws providing for the criminal prosecution of individuals believed 
to have intentionally transmitted HIV.41 This provision of the CARE Act addressed what 
were considered to be, at the time of the Act’s enactment, the three primary routes of HIV 
transmission: donation of “blood, semen, or breast milk, if the individual knows that he or 
she is infected with HIV and intends, through such donation, to expose another [to] HIV;”42 
participation in sexual activity “if the individual [knew] that he or she [was] infected with 
HIV and intends, through such sexual activity, to expose another to HIV;”43 or injecting 
oneself with a hypodermic needle and subsequently providing that needle to another for the 

37  See Who Was Ryan White?, RyaN whiTe & GloBal hiV/aidS pRoGRamS: healTh ReSouRceS & SeRV. 
admiN., https://hab.hrsa.gov/about-ryan-white-hivaids-program/who-was-ryan-white [https://perma.cc/UR29-
WHU2] (stating that White had contracted HIV “following a blood transfusion in December 1984”).

38  See Garmon, supra note 13, at 670 (stating that White’s “life and death began to change the American 
perception of HIV,” almost immediately stimulating “a public conversation regarding education about the 
epidemic”).

39  Ryan White Comprehensive AIDS Resources Emergency Act of 1990, Pub. L. No. 101-381, 104 Stat. 
576 (1990).

40  Id. § 2, 104 Stat. at 576.

41  See id. § 2647(a), 104 Stat. at 603 (“The Secretary may not make a grant under section 2641 to a State 
unless the chief executive officer determines that the criminal laws of the State are adequate to prosecute any 
HIV infected individual . . . who [knowingly intends to infect another with HIV].”).

42  Id. § 2647(a)(1), 104 Stat. at 603.

43  Id. § 2647(a)(2), 104 Stat. at 603 (emphasis added).



Columbia Journal of Gender and law 12935.1

purposes of injection, “if the individual knows that he or she is infected and intends, through 
the provision of the needle, to expose another to [HIV].”44 Congressional expectation after 
the passage of the CARE Act was that states would develop a statutory system sufficient to 
meritoriously prosecute the intentional transmission of HIV. 

Within three years of the CARE Act’s passage, over twenty-five states had enacted 
HIV-criminalization laws in various forms, often significantly exceeding the federal 
mandate. The wide reach of state criminal statutes can be speculatively explained by the 
presence of an additional provision within § 2647 of the Act, which stated the following: 
“The State laws described in subsection (a) need not apply to circumstances under which . . 
. the individual who is subjected to the behavior involved knows that the other individual is 
infected and provides prior informed consent to the activity.”45 Rather than flatly proscribing 
the application of states’ HIV-criminalization laws in situations of informed consent, the 
CARE Act merely allowed for an exception to the scope of HIV-criminalization laws’ 
application. The ambiguous character of this imperative enabled states to enact penal 
sanctions dangerously broad in scope. Unsurprisingly, the laws that states enacted reflected 
the unencumbered diversity of permissible penalization, criminalizing (non-)acts such as 
the failure to disclose HIV status to a sexual partner, the choice not to use a condom during 
penetrative sex when HIV positive, the choice not to follow daily medical regimens, and 
even consensual sex, which was often taken as indicative of a criminal “intent” to transmit 
HIV. 

When the CARE Act was reauthorized in 2000, the provision mandating state enactment 
of HIV-criminalization laws was repealed.46 Unfortunately, the repeal of this provision 
had a de minimis effect on the maintenance of HIV penal law;47 for several years after 

44  Id. § 2647(a)(3), 104 Stat. at 603.

45  Id. § 2647(b), 104 Stat. at 603.

46 See S.2311—Ryan White CARE Amendments of 2000, coNGReSS.GoV, https://www.congress.gov/
bill/106th-congress/senate-bill/2311 [https://perma.cc/9JHV-LCU7] (providing summary of amendments to 
CARE Act, which included the repeal of provisions of 1990 legislation requiring enactment of state penal laws 
as condition for receipt of federal funding).

47  As of December 21, 2016, the Centers for Disease Control and Prevention explicitly state in response 
to the question of whether HIV may be transmitted by the bite or scratch of an HIV-positive that HIV is 
not “spread through saliva, and there is no risk of transmission from scratching because no body fluids are 
transferred between people.” HIV Transmission, cTRS. FoR diSeaSe coNTRol & pReVeNTioN (last updated Dec. 
21, 2016), https://www.cdc.gov/hiv/basics/transmission.html [https://perma.cc/V6EK-W834]. Inexplicably, 
five states still maintain penal laws that criminalize the intentional transmission of saliva by an HIV-positive 
person to another individual. See Ga. code aNN. § 16-5-60(c) (West 2016); idaho code aNN. § 39-608(1) 



Columbia Journal of Gender and law130 35.1

the 2000 amendments, at least “thirty-eight states maintained statutes that either directly 
criminalized the transmission of HIV or criminalized the transmission of any STD.”48 As 
of January 2017, at least twenty-nine states criminally sanction the transmission of HIV.49 
This number does not include state sentencing laws prescribing that the presence of HIV 
within the body of an individual accused of a sexual crime must augment the period of 
incarceration;50 it also does not include civil laws allowing states to confine an individual 

(West 2016); miSS. code aNN. § 97-27-14 (West 2016); mo. aNN. STaT. § 191.677 (West 2016); uTah code 
aNN. § 76-5-102.6(2)(a)(iv) (West 2016). Knowledge that HIV could not be contracted through the exchange 
of saliva had reached non-scientific communities at least by 1987, three years before the CARE Act had even 
been enacted. Compare Lawrence K. Altman, AIDS Studies Hint Saliva May Transmit Infection, N.y. TimeS, 
Oct. 9, 1984, http://www.nytimes.com/1984/10/09/science/aids-studies-hint-saliva-may-transmit-infection.
html [https://perma.cc/5QT3-CLF7] (“New scientific evidence has raised the possibility that [AIDS] may be 
transmissible through saliva. The evidence, based on human and animal studies, is no more than suggestive in 
implicating saliva. But researchers said in interviews yesterday that they are convinced the studies raise real 
public health concerns.”), with Paula A. Triechler, AIDS, Homophobia, and Biomedical Discourse: An Epidemic 
of Signification, 43 ocToBeR 31, 36 (1987) (noting that, despite scientific knowledge having established that 
casual contact between two persons, such as saliva transmission, cannot transmit HIV, the “ambiguity and 
uncertainty [that] are features of scientific inquiry” are poorly managed socially and linguistically).

48  Garmon, supra note 13, at 671.

49  See, e.g., ala. code § 22-11A-21(c) (2016); aRK. code aNN. § 5-14-123(b) (West 2016); cal. healTh & 
SaFeTy code § 120291(a) (West 2016); Fla. STaT. aNN. § 384.24(2) (West 2016); Ga. code aNN. § 16-5-60(c) 
(West 2016); idaho code aNN. § 39-608(1) (West 2016); 720 ill. comp. STaT. § 5/12-5.01 (West 2016); iNd. 
code §§ 35-45-16-2(a)-(f) (West 2016); iowa code § 709D.3 (West 2016); KaN. STaT. aNN. § 21-5424 (West 
2016); Ky. ReV. STaT. aNN. § 311.990(24)(b) (West 2016); la. STaT. aNN. § 14:43.5 (2016); md. code. aNN., 
healTh-GeN. § 18-601.1 (West 2016); mich. comp. lawS aNN. § 333.5210 (West 2016); miNN. STaT. aNN. § 
609.2241 (West 2016); miSS. code aNN. § 97-27-14 (West 2016); mo. aNN. STaT. § 191.677 (West 2016); 
moNT. code. aNN. § 50-18-112 (West 2016); NeV. ReV. STaT. aNN. § 201.205(1) (West 2016); N.J. STaT. aNN. § 
2C:34-5(b) (West 2016); 10A N.c. admiN. code 41a.0202(1)(a)-(g) (2016); N.d. ceNT. code aNN. § 12.1-20-
17(2) (West 2016); ohio ReV. code aNN. § 2903.11(B) (West 2016); oKla. STaT. aNN. tit. 21, § 1192.1 (West 
2016); S.c. code aNN. § 44-29-145 (2016); S.d. codiFied lawS § 22-18-31 (West 2016); TeNN. code aNN. § 
39-13-109(a) (West 2016); Va. code aNN. § 18.2-67.4:1 (West 2016); waSh. ReV. code aNN. § 9A.36.011(1)
(b) (West 2016). The statutes included in the above list are those that explicitly criminalize HIV; I did not 
include those general criminal law statutes that may be employed as an ancillary means of prosecution or those 
statutes that criminalized the transmission of communicable sexual diseases. Effectively, an explicit citation to 
HIV/AIDS was necessary to qualify for inclusion on this list. 

50  See, e.g., ala. STaT. aNN. § 12.55.155(c)(33) (West 2016) (allowing judges to increase the period of 
incarceration beyond the presumptive statutory maximum); cal. peNal code § 12022.85(a) (West 2016) 
(providing for a three-year enhancement in sentencing after the commission of certain violations); colo. ReV. 
STaT. aNN. § 18-3-415.5(5)(b) (West 2016) (requiring sentencing of three times the upper limit for a sexual 
crime if the putative offender has HIV/AIDS); Fla. STaT. aNN. §§ 775.0877(1)(a)-(n) (West 2016) (cataloging 
various criminal acts for which aggravated sentencing may apply); Ga. code. aNN. § 16-5-60(d) (West 2016) 
(elevating the criminality of an assault by a person with HIV/AIDS to that of a felony if that person assaults a 



Columbia Journal of Gender and law 13135.1

believed to demonstrate a dangerous interest in the wanton spread of HIV.51 Despite the 
existence of statutes encouraging the use of condoms and allowing such use to serve as an 
affirmative defense to prosecution, there remain states where the failure to disclose one’s 
HIV positivity is considered felonious regardless of condom use.52

To consider the role of the affective in sustaining the carceral logics that animate 
HIV criminalization, it is ultimately useful to examine HIV-criminalization statutes 
representative of the general statutory archetype. Discussed below are two state statutes 
whose contents reflect some of the most common linguistic codifications of HIV penal law. 

1.  Section 709C.1(1)(a) of the Iowa Code53

Iowa did not pass its first HIV-criminalization law until 1998, a relatively late point in 
the chronology of HIV jurisprudence. As written, the statute stated that a person committed 
the act of criminal transmission of HIV if, while aware of his or her positive status, such 

police officer or correctional officer); TeNN. code aNN. § 40-35-114(21) (West 2016) (requiring an enhanced 
sentence if the transmission of HIV is at any point attempted during a crime); uTah code aNN. § 76-10-1309 
(West 2016) (increasing penalties for HIV positive criminal offenders regardless of whether such persons pose 
a significant risk of HIV transmission during the commission of the crime).

51  See, e.g., NeV. ReV. STaT. § 441A.300 (West 2016) (“A person who is diagnosed as having acquired 
immunodeficiency syndrome who fails to comply with a written order of a health authority, or who engages 
in behavior through which the disease may be spread to others, is, in addition to any other penalty imposed 
pursuant to this chapter, subject to confinement by order of a court of competent jurisdiction.”); TeNN. code aNN. 
§ 39-13-108 (West 2016) (authorizing authorities to quarantine any individual who “clearly and convincingly 
demonstrates willful and knowing disregard for the health and safety of others” by posing a threat of wanton 
HIV transmission); wiS. STaT. aNN. § 973.017 (West 2016) (including HIV status as a potentially aggravating 
factor in the determination of incarceration period); Danny Hakim, Man Who Spread H.I.V. May Be Held, 
N.y. TimeS, Apr. 13, 2010, http://www.nytimes.com/2010/04/14/nyregion/14nushawn.html [perma.cc/4UE2-
MU45](recounting a New York case in which the Attorney General attempted to keep a putative criminal in 
indefinite civil confinement under the Sex Offender Management Treatment Act of 2007, a law “intended to 
keep the most dangerous sex offenders out of communities after prison”).

52  See, e.g., State v. Wilson, 256 S.W.3d 58, 64 (Mo. 2008) (concluding that the HIV-criminalization 
statute is unambiguous and requires prosecution whenever a failure to disclose the putative criminal’s status is 
determined—even in those situations where prophylaxis is employed).

53  iowa code aNN. § 709C.1(1)(a) (West 2003) (repealed 2014). It is important to note that Iowa significantly 
amended its HIV-criminalization statute in 2014 by reducing the maximum period of incarceration from twenty-
five years to five years for exposure of an uninfected individual to HIV with reckless disregard as to whether 
the uninfected person contracts the virus.



Columbia Journal of Gender and law132 35.1

individual “[e]ngages in intimate contact with another person.”54 In turn, the statute defined 
“intimate contact” as “the intentional exposure of the body of one person to a bodily fluid 
of another person in a manner that could result in the transmission of [HIV].”55 The statute 
was amended in 2014 to include a provision stating that the use of practical means of 
prevention to avoid the transmission of HIV between serodiscordant sexual partners would 
demonstrate that an HIV-positive individual did not act with the requisite mens rea to 
sustain a criminal prosecution.56 Interestingly, the practical means provision effectively 
supplements a preexisting provision of the statute which provided for consent as an 
affirmative defense to prosecution,57 the absence of which was a common, though by no 
means uniform, feature of other states’ criminalization laws.58

Here, the capacity of one body to affect another, to impinge upon it “criminally,” is 
contextualized by the statute’s language of “intimate conduct.” Sexual exchange and bodily 
intermingling are produced as sites of the private, the sensual, the knowingly erotic—and 
yet the profoundly dangerous.59 The prohibited behaviors did not require the attribution 
of intimacy for the statute’s mandate to be cognizable. The incorporation of this affective 

54  Id. (repealed 2014) (emphasis added).

55  Id. § 709C.1(2)(b) (repealed in 2014) (emphasis added).

56  See iowa code aNN. § 709D.3(7) (West 2016) (“A person does not act with the intent required [by the 
statute] if the person takes practical means to prevent transmission.”); see also iowa code aNN. § 709D.2(3) 
(West 2016) (defining “practical means to prevent transmission” as “substantial good faith compliance with 
a treatment regimen prescribed by the person’s health care provider . . . [or use of] a prophylactic device, to 
measurably limit the risk of transmission of the contagious or infectious disease”) (internal quotation marks 
omitted).

57  iowa code aNN. § 709C.1(5) (West 2003) (repealed 2014) (“It is an affirmative defense that the person 
exposed . . . knew that the infected person had a positive . . . status at the time of the action of exposure, 
knew that the action . . . could result in transmission . . . and consented to the action of exposure with that 
knowledge.”).

58  Proof of consent to exposure is available in certain states as an affirmative defense to prosecution on 
the basis of criminal HIV transmission. Other states, however, do not consider consent to be a viable defense, 
affirmative or otherwise, to prosecution under HIV-criminalization laws, suggesting that an individual would 
likely remain criminally liable for transmission (regardless of its actual occurrence) even in situations of 
consensual sexual intercourse. See Amanda Weiss, Comment, Criminalizing Consensual Transmission of 
HIV, 2006 u. chi. leGal F. 389, 392 (discussing the utility of the affirmative defense of consent in HIV-
criminalization prosecutions). 

59  The statute’s use of the phrase “intentional exposure” is particularly apposite to this point. The intentionality 
of transmission is built into the statute’s definition of “intimate contact,” thereby suggesting that to be intimate 
with a person who is HIV positive or as a person who is HIV positive necessarily invokes a sense of criminality 
and violation in the space regularly presumed to be defined by the absence of those affective sensations.



Columbia Journal of Gender and law 13335.1

valence, however, operates to purposefully exacerbate the criminality of HIV transmission; 
it posits a scene of heterosexualized intimacy endangered by the confluence of intimacy 
and criminal intentionality vis-à-vis furtive, intentional HIV transmission. In its creation 
of a sexual imaginary that privileges a specific form of bodily sexual expression, the law 
exploits the familiarity of those affective resonances bound by a model of kinship that 
aggrandizes the stakes of putative betrayal and sexual contagion. Tellingly, the statute 
does not reference penetrative intercourse, and it avoids graphic viscerality in favor of 
hazy euphemism. The type of “contact” the statute envisions is qualified by its “intimate” 
character, and, though this rhetoric enables a sexual imaginary of benign sexuality, such a 
possibility dissipates once the statute’s definition of intimacy is articulated—one of leaking 
bodily fluids and vulnerable, compromised bodily surfaces. 

Of obvious interest, then, is the statutory definition of “intimate contact,” which speaks 
of the body of one subject and the bodily fluid of another. Curiously, the durative predicate 
constituting “intimate conduct” has no acting subject. Definitive of the contact is not the 
action of an individual; it is the passage of fluid to body, the “exposure . . . that could 
result” in viral transmission. The statute does away with the notional agentic subject in 
favor of an affective reorganization of sexual temporality that agonizingly emphasizes the 
latent possibility of sexual criminality. In so doing, Iowa’s criminalization statute conjures 
a phantasmatic actor who is somehow able to facilitate the bodily exchange that the statute 
sanctions without ever taking corporeal, embodied form. A specter dwells within Iowa’s 
law, one that retroactively produces a fictive drama of intimacy to heighten the crime the 
HIV-positive body waits to commit.

2.  Section 5-14-123 of the Arkansas Code60

Passed in 1989 and not having undergone any alterations since its enactment, Arkansas’ 
HIV-criminalization law remains disturbingly punitive, authorizing a maximum prison 
sentence of up to thirty years.61 The statute’s semantic structure reads declaratively, with its 
first provision ostensibly not proscribing any specific criminal act but instead categorically 
asserting that a person living with AIDS or who is HIV positive “is infectious to another 
person through the exchange of a body fluid during sexual intercourse and through the 
parenteral transfer of blood or a blood product and under these circumstances is a danger 

60  aRK. code. aNN. § 5-14-123 (West 2016).

61  See id. § 5-14-123(d) (“Exposing another person to human immunodeficiency virus is a Class A felony.”); 
aRK. code. aNN. § 5-4-401(a)(2) (West 2016) (stating that a defendant convicted of a Class A felony shall 
receive a sentence of “not less than six (6) years nor more than thirty (30) years”).



Columbia Journal of Gender and law134 35.1

to the public.”62 The next provision delineates the elements of the offense of criminal 
exposure, which is committed when an individual who is aware of his HIV-positive status 
“exposes another person to [HIV] infection through the parenteral transfer of blood or a 
blood product or engages in sexual penetration with another person without first having 
informed the other person of the presence of [HIV].”63 The phrase “sexual penetration” is 
in turn defined as any form of sexual penetration “or any other intrusion, however slight, 
of any part of a person’s body or of any object into a genital or anal opening of another 
person’s body.”64 The statute then states explicitly that “emission of semen is not required” 
for either prosecution or conviction.65

Arkansas’ criminalization statute bears the title “Knowingly transmitting AIDS, HIV.”66 
When juxtaposed against the statutory text, which properly differentiates the development 
of AIDS from the contraction of HIV, the statute’s title does significant normative work 
in the construction of the HIV-positive criminal. The title’s conflation of HIV and AIDS 
dissolves the possibility of a non-phobic stance toward HIV positivity through its densely 
concentrated ascription of criminal intention to the HIV-positive sexual actor. No mens rea 
standard is articulated within the statutory text, despite the suggestion borne by the statute’s 
title; what, then, might the titular language of knowledge be meant to signify? While no 
definitive answer can be provided, two aspects of the title merit attention: the conjugation 
of “transmit” in the durative predicate and the inverted viral temporality suggested by 
the ordering of “AIDS” before “HIV.” To describe a criminal act through the language of 
ongoing continuity, such as that suggested by “transmitting,” disrupts the linear temporality 
that organizes and divides past from present, present from future. These points of breakage 
cannot be identified when that which marks a subject’s action demarcates neither beginning 
nor end. This temporal disorientation is arguably heightened by the peculiar placement of 
“AIDS” before “HIV,” which both synonymizes the two (a form of metonymic slippage 
that heightens the spectacular precarity of the danger posed by the sexually active HIV-
positive body) and signifies the primacy of that which results in death—the development 
of AIDS. It is the decomposition of bodily immunity that defines the onset of AIDS, still 
taken to symbolize a death no longer able to be deferred. 

62  Id. § 5-14-123(a) (emphasis added).

63  Id. § 5-14-123(b).

64  Id. § 5-14-123(c)(1).

65  Id. § 5-14-123(c)(2).

66  aRK. code. aNN. § 5-14-123 (West 2016).



Columbia Journal of Gender and law 13535.1

In the criminal statute’s first provision, a declaration is made regarding persons who 
are HIV positive: no matter the circumstances of their sexual or bodily interactions, HIV-
positive persons are sites of public danger and therefore must be surveilled and controlled. 
The emphatic character of this danger is highlighted by the statute’s definition of “sexual 
penetration,” which holds that even the slightest impingement upon the body—not solely 
those bodily sites and orifices traditionally associated with sexual acts—constitutes a 
penetrative, and therefore virally infectious, act. That the statute does not condition the 
viability of prosecution on the emission of semen during a sexual encounter, though 
ostensibly curious merely by virtue of its express notation,67 materializes as perfectly 
intelligible when contextualized by statute’s emphasis on parenteral contact. In its 
commentary on Arkansas’ HIV-criminalization law, the Center for HIV Law and Policy 
states that prosecution governed by a theory of parenteral exposure will argue that, “through 
a break in the skin or through a mucus membrane . . . any amount of HIV-positive blood 
[that] makes contact with another individual’s non-intact skin, eyes, nose, mouth, or other 
area” justifies a conviction.68 Intentionality is rendered purposefully absent, which incites 
the question of who exactly is deemed the acting criminal agent.

B.  Judicial Production of the Juridico-Affective Discourse of HIV

With the passage of state penal statutes came a deluge of criminal prosecutions, several 
of which resulted in the publication of judicial opinions by both intermediary courts and 
state courts of last resort. The legal texts these courts produced in their evaluations of HIV-
criminalization statutes are the primary archival sites of this next discussion. I examine 
the below opinions with an assiduous scrutiny, the granular mode of which follows from 
courts’ role as the “central institutional venue[s] for negotiating the role of sexuality [and 
race] in the public sphere.”69 The capacity to negotiate the meaning of public spaces is 

67  It is also worth noting that, by explicitly denying the necessity of seminal emission to the viability of 
criminal prosecution, Arkansas’ statute centralizes the male body as the sine qua non of sexual aberrance and 
HIV-driven criminality. The likelihood of contracting HIV from a sexual encounter is driven by the quantity 
of virus present within an individual’s body, known also as an individual’s viral load. Vaginal secretions are 
among the bodily fluids that can contain (and therefore can transmit) HIV, but the possibility of transmission is 
determined by multiple other factors—including the consistent use of antiretroviral medication as prescribed 
by one’s physician. By situating the penis as the locus of potential criminality and then dismissing the presence 
of seminal emissions as an evidentiary requirement, Arkansas’s HIV-criminalization law doubly signifies the 
male body as the precarious site of HIV transmission and criminal sexuality.

68  RichaRdSoN eT al., eNdiNG & deFeNdiNG aGaiNST hiV cRimiNalizaTioN, supra note 12, at 16.

69  Nan Hunter, Sexual Orientation and the Paradox of Heightened Scrutiny, 102 mich. l. ReV. 1528, 1541 
(2004).



Columbia Journal of Gender and law136 35.1

undergirded by the relative autonomy the judiciary enjoys in fashioning the language it will 
use to vivify the law’s dimensionality. Just as was the purpose of my review of Iowa’s and 
Arkansas’ HIV-criminalization laws, my objective here is to locate the juncture of bodily 
affect to the law that encourages the personification of HIV as a lethal, homicidal agent. 
Although I will present my discussion of these cases chronologically, this organizational 
choice is not meant to suggest that my analysis charts an evolution in the affectivity of HIV 
jurisprudence. Instead, I have chosen cases decided at various points in the history of the 
epidemic to more clearly demonstrate the embedded, ongoing character of the juridico-
discursive in HIV-criminalization law.

1.  State v. Haines70

In August 1987, police officers drove to the apartment of Donald Haines, located in 
Lafayette, Indiana.71 Haines was found unconscious in a pool of blood, having attempted to 
commit suicide. When one of the responding officers successfully revived Haines, Haines 
“begin yelling and stated he wanted to f—[the officer] and ‘give it to him,’”72 understood 
by the officers to mean HIV because of clarifying information offered by Haines’ sexual 
partner. Haines stated that he would use his wounds to splatter blood on the officers, and, 
upon the arrival of emergency medical technicians, Haines threatened to infect them with 
HIV by “spitting at them.”73 The court continued to detail the excesses of blood that doused 
officers’ “eyes, mouth[s], and skin,”74 stating that Haines “repeatedly told the medical staff 
not to touch him because he was diseased” and that Haines knew the staff “was ‘afraid of 
his AIDS’ because of the protective clothing they were wearing.”75 The responding officers 
subsequently arrested Haines, and the prosecuting attorney charged Haines with three 
counts of attempted murder, of which a jury found Haines guilty on each count.76 Haines 
moved for a judgment on the evidence as to the three counts of attempted murder, which 
the trial court granted, vacating the verdict; Haines was subsequently charged with three 

70  State v. Haines, 545 N.E.2d 834 (Ind. Ct. App. 1989).

71  Id. at 835.

72  Id.

73  Id.

74  Id.

75  Id.

76  State v. Haines, 545 N.E.2d 834, 836 (Ind. Ct. App. 1989).



Columbia Journal of Gender and law 13735.1

counts of battery, resulting in a six-year sentence.77 The prosecuting attorney appealed the 
court’s granting of a motion for judgment on the evidence.

The Court of Appeals of Indiana quoted extensively from the record of the lower 
court’s transcript throughout its decision, and the language selected by the appellate court 
does significant normative work in the production of a juridico-affective discourse that 
subtends the criminalization of the HIV-positive body. In its evaluation of the common law 
of attempt, the trial court stated that, under normal circumstances, the mere act of spitting 
could not constitute “a step, substantial or otherwise,” to satisfy the requisite burden of 
proof.78 However, the case at hand was unique in that the conduct in question was linked to 
a disease “which by definition [was] inextricably based in science and medicine,” and, for 
a jury to evaluate that conduct, it required the aid of expert assistance to better understand 
that science.79 Per the trial court, the prosecution was incorrect to assume that the jury knew 
the truth—that AIDS was “as common a killer as a gun or a knife, which by their very 
nature are deadly weapons.”80 With this contention the appellate court disagreed, as the 
trial record demonstrated unequivocally that “Haines carried the AIDS virus, was aware 
of the infection, believed it to be fatal, and intended to inflict others with the disease by 
spitting, biting, scratching, and throwing blood.”81 The appellate court ultimately reversed 
the trial court’s judgment, stating that Haines’ “biological warfare with those attempting to 
help him [was] akin to a sinking ship firing on its rescuers.”82

In its grotesque narration of Haines’ detention by police and medical staff, the appellate 
court relentlessly emphasized the precarious portals of bodily entry that imperiled the 
responding officers. Bodily fluids such as blood and spit became the vectors through which 
disease could circulate among vulnerable organic tissues, where bodily sites such as eye 
sockets, mouths, and skin membranes were transformed into the lethal conduits of viral 
transmission. The linguistic presentation of Haines’ curious facts takes root in the forbidden 
intermingling of a criminal body with the body of the state; the capacity of bodies to be 
vivisected by a lethal, unrepentant virus is captured most clearly in the court’s emphasis on 

77  Id.

78  Id. (citations omitted).

79  Id. (citations omitted).

80  Id. at 837 (citations omitted).

81  Id. at 838.

82  State v. Haines, 545 N.E.2d 834, 838 (Ind. Ct. App. 1989).



Columbia Journal of Gender and law138 35.1

the vulnerability associated with the touch of the contagion. Augmenting this suggestion 
of bodily vulnerability was the appellate court’s unequivocal subjectification of HIV.83 It is 
not the criminal subject who exploits his HIV-positive status to potentially harm the police 
officers seeking to thwart his suicide attempt. Instead, it is HIV that becomes the killer. 
The subject whose body bears the virus becomes psychically displaced by the virus itself, 
and what remains is a tool that will facilitate HIV’s murderous will, having already taken 
its first victim at the moment of transmission—the HIV-positive subject now psychically 
dispossessed of his own body.

Perhaps most interesting is appellate court’s description of Haines’ actions as “biological 
warfare.” In his extensive examination of American histories of bioinsecurity, Neel Ahuja 
suggests that the figurations espoused by contagion and microbial ecologies produce 
“intimate, even eroticized threats: the invisible weapon, the body poised to explode into 
violence, unthinkable knowledge, improper touch, unknown penetration, unpredictable 
shape-shifting.”84 Insofar as the affective is the political and the political the affective, the 
appellate court’s invocation of warfare—a dramatized scaling whose hyperbole exacerbates 
the construction of the HIV-positive body as a vector of disease and danger—generates 
a nodal juncture at which national fears of interspecies contact could be inscribed onto 
the hyper-localized examination of Haines’ criminality. That Haines spilled his own blood 
dissolved the putative boundary between the unmarked “outside” and the virally putrid 
“inside,” and the violent eradication of this bodily dualism transformed Haines’ body not 
only into a contact zone of virality but also into a leaky weapon of atmospheric saturation. 
HIV circulated beyond the physical limits of the body in which it was once contained, 

83  Because the appeal in Haines dealt with the legal propriety the trial court’s granting of a motion for 
judgment on the evidence subsequent to the jury’s verdict, the appellate court quoted extensively from the 
transcript of the proceedings at trial in its own opinion. At sentencing, the trial judge described the position 
taken by the prosecution in its selective submission of evidence: “[I]n this case, the State took the position that 
everyone has heard of AIDS; that everybody has read about the disease of AIDS; and that everyone knows 
that this disease can be lethal or that it is lethal; that AIDS, if you will, is as common a killer as a gun or knife, 
which by their nature are deadly weapons.” Id. at 837 (citation omitted). The trial court rejected the viability 
of this assumption, which led the appellate court to reverse the trial court’s displacement of the jury’s verdict. 
In reaching its decision, the appellate court stated the following: “We can only conclude that Haines had 
knowledge of his disease and that he unrelentingly and unequivocally sought to kill the persons helping him by 
infecting them with AIDS, and that he took a substantial step towards killing them by his conduct believing that 
he could do so.” Id. at 841. The intensity with which the appellate court describes Haines’ desire to kill those 
“helping him” by “infecting them with AIDS” sounds almost otherworldly, and it is through the affectivity of 
this language that the HIV-positive body becomes something other than human—something viral, something 
murderous, and something unquestionably dangerous.

84  ahuJa, supra note 22, at 15. 



Columbia Journal of Gender and law 13935.1

fulfilling the murderous needs of a fictive will retroactively personified.

2.  State v. Hinkhouse85

Timothy Hinkhouse was convicted of ten counts of attempted murder and ten counts 
of attempted assault on the basis of having unprotected sex with multiple partners despite 
knowing that he was HIV positive.86 Hinkhouse appealed his conviction on the grounds 
that the evidence the prosecution presented was insufficient to establish intent to murder or 
cause serious injury to any of his sexual partners; the Court of Appeals of Oregon disagreed 
and affirmed the convictions.87 In its recitation of the facts, the appellate court took pains to 
evince the quantity of Hinkhouse’s sexual partners, often citing testimony from the record 
of the lower court’s proceedings to demonstrate Hinkhouse’s putative disregard for the 
lives of those whom he infected.88

In November 1990, two years prior to Hinkhouse’s arrest and trial, Hinkhouse informed 
his probation officer that he had learned of his positive status. Hinkhouse’s probation 
officer stated that, should Hinkhouse pass the virus to another person, he would “be killing 
someone,”89 and the two regularly had conversations in which Hinkhouse was reminded 
of “the danger [he] posed by continuing to engage in sexual relationships.”90 When taken 
into custody for an unrelated probation violation several months later, Hinkhouse “signed 
a probation agreement that included a commitment not to engage in any unsupervised 
contact with women without express permission from his parole officer.”91 Despite having 
signed this agreement, Hinkhouse continued to solicit sex from various partners, and his 
use of condoms was rare and often purposefully disregarded. The court noted a particular 
occasion in which Hinkhouse refused to wear a condom and engaged “in intercourse so 

85  State v. Hinkhouse, 912 P.2d 921 (1996).

86  Id. at 922.

87  Id.

88  Id. (“When they met, defendant asked whether she had been tested [for HIV]. P.B. responded, ‘[W]ell, 
you should know my status because you gave it to me.’ Defendant did not deny the accusation, but just ‘brushed 
it off.’”).

89  Id. at 923.

90  Id.

91  State v. Hinkhouse, 912 P.2d 921, 923 (1996).



Columbia Journal of Gender and law140 35.1

vigorously” that his partner suffered vaginal bleeding.92 The single exception Hinkhouse 
recited to his preference for condomless sex was with the woman whom he stated he 
intended to marry; Hinkhouse disclosed his HIV status to her and described having always 
worn condoms during sex.93 

The appellate court’s characterization of Hinkhouse’s sexual proclivities effected a 
dramatized backdrop against which it summarized the commentary of various scientific 
experts. Such recapitulations often borrowed from the linguistic domain of security; 
for example, one expert is recounted as having stated that “more violent sex or anal sex 
increases the risk of transmission, because of the increased likelihood that tears in tissue 
[will] break down the body’s barriers to the virus.”94 The language of securitization found 
its curious complement in the rhetoric of psychopathology, including evaluations from the 
state’s psychiatric expert which concluded that Hinkhouse suffered from both borderline 
personality disorder and antisociality.95 The expert considered it significant that Hinkhouse 
“agreed to use, and in fact used, condoms when having intercourse with a woman for 
whom he expressed affection, but [did] not use condoms with the other women with whom 
he had sex.”96

Upon review of the evidence, the appellate court concluded that a rational trier of 
fact could find that Hinkhouse had intended to cause both physical injury and death to his 
victims. The court stated that Hinkhouse knew his “condition was terminal,”97 and that 
“if he transmitted the virus to another person, that person would eventually die as well.”98 
Although Hinkhouse insisted that his sole purpose was his own sexual gratification, the 
court found the suggestion to lack credibility. Ultimately, the court concluded:

92  Id.

93  Id.

94  Id. at 924 (emphasis added).

95  Id. Antisocial Personality Disorder is characterized by “poor social conformity, deceitfulness, impulsivity, 
criminality, and lack of remorse.” JoN e. GRaNT & doNald w. BlacK, dSm-5 GuideBooK: The eSSeNTial 
compaNioN To The diaGNoSTic aNd STaTiSTical maNual oF meNTal diSoRdeRS 397 (5th ed. 2014). To be 
diagnosed with Antisocial Personality Disorder, an individual must “have little sense of responsibility, lack 
judgment, blame others [for socially inappropriate acts], and rationalize their behaviors.” Id. Many persons 
suffering from this disorder are caught within the crosshairs of the criminal justice system. Id.

96  State v. Hinkhouse, 912 P.2d 921, 924 (1996).

97  Id. 

98  Id. at 924–25.



Columbia Journal of Gender and law 14135.1

[Hinkhouse’s conduct demonstrated] that his objective was more than 
mere sexual gratification. When he engaged in sexual intercourse with the 
woman he hoped to marry, he consistently wore condoms and made no 
attempt to conceal his HIV status. When he had sex with others, in contrast, 
he concealed or lied about his condition and refused any protection. 
Particularly in the light of the pattern of exploitation over a long period of 
time, a rational factfinder could conclude beyond a reasonable doubt that 
defendant did not act impulsively merely to satisfy his sexual desires.99

Hinkhouse underscores the mutually constitutive nexus of affect and securitization, 
whereby the reiterative performativity of the volatile HIV-positive body requires endless 
monitoring by supervisory juridical apparatuses. Foucault argues that freedom, as both 
an ideology and a technique of governance, “is nothing else but the correlative of the 
deployment of apparatuses of security . . . no longer [defined by] the exemptions and 
privileges attached to a person, but the possibility of movement, change of place, and 
processes of circulation of both people and things.”100 Having been brought within the 
crosshairs of a disciplinary carceral system, Hinkhouse’s sexual freedom was immediately 
recalibrated as a ratio correlative to the state’s capacity to curtail that freedom. This 
figuration of security, the intelligibility of which is contingent upon identifying Hinkhouse 
as a vector of disease whose potential for violence takes on an especially acute form 
insofar as HIV has not yet “marked” his body, masquerades as an affective sense of bodily 
prophylaxis for the population of heterosexual women (as identified by the appellate court) 
who might otherwise fall victim to Hinkhouse’s (or HIV’s?) artifice. 

The style of anticipatory governmentality Hinkhouse’s “probation agreement” 
effectuates becomes for the court a juncture of temporal collapse, where Hinkhouse’s 
prior and future misdeeds map onto a present whose boundaries undergo unexpected 
metamorphosis at the very moment when the state’s biopolitical control manifests its 
putative apex. The probation agreement operates as a nodule of anticipatory juridical 
intervention. By requiring Hinkhouse to obtain express permission from his parole officer 
whenever he seeks to have contact with women, its purpose is not to mitigate the potential 
transmission of HIV or to reduce the state’s purported fear of wanton viral exchange; 
instead, the agreement rests on the tacit presupposition that Hinkhouse will inevitably seek 
contact with women, will inevitably seek to transmit the virus, and thus conjures the very 

99  Id. at 925.

100  michel FoucaulT, SecuRiTy, TeRRiToRy, populaTioN: lecTuReS aT The collèGe de FRaNce, 1977–1978 
48–49 (Michel Senellart ed., Graham Burchell trans., 2009).



Columbia Journal of Gender and law142 35.1

sense of affective invasion and bodily susceptibility it purports to mitigate. 

Again appearing within a judicial opinion regarding HIV criminality is the leakiness and 
timidity of the body in its shedding of blood. Rhetorical emphasis was placed on Hinkhouse’s 
interest in sexual intercourse so vigorous as to cause his partner to bleed vaginally, and this 
narrative depiction of sexual violence allowed the court to displace the human body from 
the register of organism to that of a fortress under siege. Discussion of bodily “barriers” 
broken down by Hinkhouse’s aggressive style of sexual intercourse dispossess Hinkhouse 
of any psychic subjectivity so as to effect an allusion of his penis as a battering ram poised 
to release its viral napalm. Curiously, the appellate court includes citations from the trial 
record only when adding to the pernicious dimensionality of Hinkhouse’s personality. 
Descriptions of roughness, rudeness, and reveling in opportunities to be “spiteful” are lifted 
from the testimony of Hinkhouse’s prior partners, while testimonial language confirming 
the court’s lurid descriptions of Hinkhouse’s sexual inclinations stands as conspicuously 
absent. 

Undergirding much of the appellate court’s analysis is a heteronormative logic of 
monogamous kinship, which crystallizes throughout the testimony of the state’s psychiatric 
expert in a paradoxical form. The court finds it of significance that Hinkhouse consistently 
used condoms during sexual intercourse with the woman whom he hoped to marry and 
that he had disclosed his positive status to this partner prior to the consummation of 
their sexual relations. Hinkhouse’s interest in marriage, which might have been read as 
a willing submission to the disciplinary heteronormativity regulating sexual relations, 
is instead inverted and used as further evidence of his criminal intentions. Insofar as 
Hinkhouse demonstrated the kind of responsible, domesticated sexuality associated with 
heteronormativity with the woman he identified as a future wife, the wanton spread of HIV 
through reckless sexual abandon with multiple other partners further damned Hinkhouse 
as sexually and psychologically depraved. The import of the state’s psychiatric expert’s 
diagnosis of Hinkhouse with borderline personality disorder and antisocial personality 
disorder cannot be read merely as compounding evidence. These twin diagnoses evacuate 
Hinkhouse of the kind of normalized psychic subjectivity that is central to the modernist 
understanding of the agentic, rational subject; under a modernist, Cartesian reading that 
would divorce the body from the psyche, Hinkhouse’s fractured psychic state left his body 
abandoned and without a psychic master. In the absence of a coherent psychic self, what 
remained operative within Hinkhouse’s body? That the immediate answer to that question 
is HIV is not inconsequential. 



Columbia Journal of Gender and law 14335.1

3.  People v. Shawn101

In 2001, Eric Shawn was arrested after an altercation with the assistant manager 
of a drug store, during which Shawn “allegedly made a threat by saying he was HIV 
positive.”102 Shawn was arrested and subsequently charged with one count of misdemeanor 
theft and one count of felony menacing; a jury found him guilty on both counts, leading 
Shawn to file an appeal specifically contesting the sufficiency of the evidence supporting 
the conviction for felony menacing.103 In the state of Colorado, a person commits the crime 
of menacing if, “by any threat or physical action, he or she knowingly places or attempts 
to place another person in fear of imminent serious bodily injury.”104 Menacing, though 
normally a misdemeanor, is classified as a felony if “committed by ‘the use of a deadly 
weapon’ or by ‘the person representing verbally or otherwise that he or she is armed with a 
deadly weapon.’”105 The appellate court noted that, in determining whether Shawn placed 
or attempted to place the putative victim in fear of imminent serious bodily injury, the 
proper focus should be placed “on the intent and conduct of the actor, not of the victim. 
The prosecution need only prove the defendant was aware that his or her conduct was 
practically certain to cause fear.”106

After rejecting Shawn’s contention that his actions were not intended to incite fear in the 
victim, the appellate court considered whether Shawn used a “deadly weapon” during the 
commission of the act of criminal menacing. The court noted that, in Colorado, a “deadly 
weapon” is defined as “any weapon, device, instrument, material, or substance, whether 
animate or inanimate, which in the manner it is used or intended to be used is capable 
of producing death or serious bodily injury.”107 For HIV to qualify as a deadly weapon, 
the inquiry the court described emphasized not the extent to which the transmission of 
HIV was likely but rather whether an object or substance could cause transmission.108 The 

101  People v. Shawn, 107 P.3d 1033 (Colo. App. 2004).

102  Id. at 1034.

103  Id.

104  colo. ReV. STaT. aNN. § 18-3-206 (West 2016) (emphasis added).

105  Shawn, 107 P.3d at 1034 (citing People v. Hines, 780 P.2d 556 (Colo. 1989)).

106  Id. at 1035.

107  Id. (emphasis added).

108  Id. at 1036 (“In Colorado, the controlling standing is whether the object or substance is ‘capable’ of 
causing, rather than ‘likely’ to cause serious bodily injury.”).



Columbia Journal of Gender and law144 35.1

commission of felony menacing requires the incitement of fear in the victim and not actual 
use of the deadly weapon, as would be required in an allegation of assault. Ultimately, then, 
the propriety of Shawn’s appeal turned on whether he in fact “used” HIV as a threatening, 
deadly weapon. 

Prior decisional law in Colorado’s highest court had held that the term “use” was 
“‘broad enough to include the act of holding the weapon in the presence of another in a 
manner that causes the other person to fear for his safety.’”109 In the case the appellate court 
cited, People v. Hines, the defendant had held a gun at his side and “stated to the victim, 
‘You make one move . . . and I will put a hole in you.’”110 The appellate court found Hines 
analogous to the instant appeal, stating that defendant’s acts of pinching and scratching 
the victim as well as attempting to bite the victim were sufficient “to show [that Shawn] 
‘used’ his purported HIV status in a manner that could cause the victim to fear for his 
safety.”111 Because Shawn had “attempted to break the victim’s skin, [he] had [had] ready 
means of transmitting HIV and thus [had] used the infection to attempt to induce fear in 
the victim.”112

The decision the appellate court reached in Shawn depended on a demonstration of the 
intersection of three juridico-affective axes: 1) Shawn’s incitement of fear in the victim 
not merely as a psychic matter but as one intimately related to a sense of bodily violation 
and harm; 2) the affective lethality symbolically embedded within preexisting discourses 
of HIV circulation through the intermingling of “open” skin; and 3) the transmogrification 
of the HIV-positive body into a living, organic weapon, analogous to the gun-prosthesis 
described in Hines, capable of inciting fear of imminent bodily harm by an announcement 
of its presence and its proximity. Through its presentation of the factual record and its 
cleverly elastic reading of juridical precedent, the appellate court was able to generate each 
of these axes in the form of fundamentally axiomatic truths and then braid them together in 
the affirmation of Shawn’s conviction. 

That these valences are primarily affective and divorced from the per se emotional can 
be read within the court’s interpretation of the juridical meaning of “fear.” In its conclusion 
that Shawn’s actions were certain to cause fear, the appellate court paradoxically states that 

109  Id. (citing Hines, 780 P.2d at 599).

110  Id. (citing Hines, 780 P.2d at 558).

111  People v. Shawn, 107 P.3d 1033, 1037 (Colo. App. 2004).

112  Id.



Columbia Journal of Gender and law 14535.1

“the victim’s testimony that he was not in imminent fear of injury does not require another 
result.”113 The court buttresses this conclusion by citing to prior case law holding that a 
victim’s “actual reaction” cannot be dispositive in determining whether defendant sought 
to incite fear.114 More than simply ignoring its earlier dicta that what the victim saw or heard 
during the commission of the crime is relevant to the legal inquiry, the court dismisses the 
necessity of a cognitive registration of fear within the victim and instead depends upon 
proof of bodily excitation and stimulus. The objectivity purportedly undergirding the 
court’s analysis is merely a juridical trope that veils the court’s turn to the affective; indeed, 
there is a barely palpable undercurrent of psychoanalytic projection embedded within the 
court’s pronouncements, allowing it to displace the fear of the “victim” and supplant that 
space with its own paranoia.

Manifest once again is the anticipatory fear of the breakdown and intermingling of 
bodies and skin, where the viral ecology of Shawn’s body becomes a weapon as deadly 
as a gun. An examination of the economy of presuppositions allowing the court to claim 
that threatening to kill an individual with a gun and stating aloud that one is HIV positive 
share mimetic substance is also worthwhile. The use of a firearm to cause bodily injury 
to another person requires, in most instances, the conscious aiming of that firearm at the 
individual and the pulling of the firearm’s triggering mechanism. Of course, the firearm 
only becomes a bodily prosthetic during the period in which it is held; once it is removed 
from the body operating it, the gun’s status as dangerous prosthesis is nullified. That an 
individual can remove a gun from his hands presents a choice situated in starkly orthogonal 
juxtaposition to the “deadly weapon” of HIV positivity. Because an individual cannot 
excise HIV from his body, the court’s false equivalency of the firearm and the virus further 
sediments the criminalization not of an act but of a body. It is telling that the appellate court 
cited testimony from Hines in which the defendant spoke of putting “a hole” in the body of 
his potential victim; the capacity of a firearm to tear open a body in the form of a wound is 
the polarized dramaturgy of HIV’s work as a viral migrant, seeking its entry in the tiniest 
of vulnerabilities.

The appellate court thus divests Shawn’s body of the psychic subjectivity in order 
to reimagine that body as a weapon of viral warfare. Shawn need not have speech nor 
name, nor need he live as would any other human organism. What the court facilitates 
is the subjectification of HIV as agentic, as the true psychic entity devising its plans of 
reproductive bloom, as the master of a body whose speech takes the form of the curdling 

113  Id. at 1035 (emphasis added).

114  Id. (emphasis added).



Columbia Journal of Gender and law146 35.1

blood-cry and the penetrating wound: destruction, alone and absolute. 

C.  Psychic Dispossession and the Personification of HIV

The three cases discussed above are by no means exceptional in their rhetoric or in 
their holdings; my review of the juridical literature produced by courts within the field of 
HIV criminal jurisprudence suggests that they are, in fact, accurately emblematic of the 
body of decisional law construing HIV-criminalization statutes and prosecutions. Notably, 
in each of the above decisions, the court produced a legal analysis whose consequence 
reverberated not only in its amplification of the American carceral complex but also in its 
dependence on appeals to affect. This constant refrain to sites of bodily sensation subtends 
the proliferation of the juridico-affective discourse of HIV criminalization, wherein the 
intelligibility of punitive legal measures is indexed by the court’s capacity to linguistically 
capture the myriad ways in which HIV impinges on the unsuspecting body. 

Both intriguing and disturbing about this discourse is its forcible divestiture of an 
individual’s psychic subjectivity from that individual’s body to aggressively augment the 
sense of HIV’s looming lethality. The consequence of this histrionic cultivation of fear is 
the dehumanization of the HIV-positive subject and the imputation of an agentic psyche 
to the virus reproducing within its host. As my readings of the above cases suggest, the 
efficacy of this perverse (re)inscription is intimately bound to the court’s conjuring of 
bodily affect and the susceptibility of the body to HIV transmission. HIV becomes an actor 
within the dramaturgy of the crime, taking its role as the collective agent orchestrating its 
own transmission and reproduction across a nation completely unable to curtail its seepage. 
The anxiety that attends to the vulnerability of bodily porousness and the potential for the 
exploitation of that porousness infuse all three opinions with a unique kind of urgency—the 
micropolitical, affective battle waged within each opinion is almost understood to be tied 
to the macropolitical affective battle a wounded nation wages against HIV, an unremitting 
viral interloper.  

Examples of this affective subjectification are multiple, but I find that the most 
illuminating involve the courts’ ventriloquy of the HIV-positive persons standing before 
them. Citations of the HIV-positive criminal’s speech—almost always reflective of the 
morbid and murderous—forge an aporia within which the subjectification of HIV as 
the puppeteer dominating the psyche of its bodily marionette may begin. One need only 
consider, for example, the appellant who bit a police officer during his arrest with the 
alleged intent to transfer HIV who then laughed when the officer asked if he was HIV-



Columbia Journal of Gender and law 14735.1

positive,115 or think about the HIV-positive man who “sought” to infect the police officers 
that revived him after an attempted suicide,116 or remember the “criminal” who informed 
those around him that he had AIDS and that it was his intention to take as many with him 
in death as he could,117 or acknowledge the sexual predator who sought to ensure that 
everyone would “die with [him]” from HIV.118 

In each instance, behavior deemed sexually and physically violent to a domesticated, 
non-infectious social order is thrust into the rhetoricized present in the form of endless 
trauma. This forced exchange between past and present deconstructs the notion that the past 
is only a source of what was, producing a distinct repetition of the trauma of transmission 
in the present as what is, was, and will be, without distinction. In its violation of temporal 
norms, this deployment of past-as-present mirrors the sense of affective violation generated 
by the above judicial opinions that is meant to signify the corruption of bodily security. A 
process of psychologizing occurs at these junctures of memory, where the person living 
with HIV is signified as a site of psychic dispossession, investing HIV with the power of 
bodily control and the capacity to effectuate the virus’ homicidal will. This will, though 
difficult for the courts to articulate, is manifest in their invocations of affect, which litter 
the language, images, and narratives of their opinions.

III.  The Criminal Cadenza of Tiger Mandingo: Michael Johnson, HIV 
Criminalization, and the Juridico-Affective

The analysis presented in Part III sought to chart a (partial and inevitably fragmented) 
genealogy of the juridico-affective discourse of HIV criminalization. My purpose was to 
lay a foundation upon which to consider the following question: Is the juridico-affective 
economy of language subtending HIV criminalization coherently maintained and visible 
in the criminal prosecution of Michael Johnson? Problematically, no primary sources from 

115  Scroggins v. State, 198 Ga. App. 29, 29 (1990) (“Ultimately, Officer Crook got Greg Scroggins to the 
ground and straddled him. He heard Scroggins making noises with his mouth as if to bring up spittle; then 
Scroggins raised forward and bit Officer Crook on the forearm. The bite was strong enough to tear through the 
officer’s long-sleeved shirt, and left distinct, full-mouth bite wounds which took ten months to heal.”); id. at 
30 (“Officer Crook went to Scroggins and said, ‘Dude, do you have AIDS?’ Scroggins just looked at him and 
laughed. He had just two months earlier been diagnosed as having the HIV virus.”).

116  State v. Haines, 545 N.E.2d 834, 835 (Ind. Ct. App. 1990).

117  Weeks v. State, 834 S.W.2d 559, 561 (Tex. Ct. App. 1992).

118  State v. Stark, 66 Wash. App. 423, 433 (1992) (including testimony from Stark’s neighbor, accounting a 
statement in which Stark said, “‘I don’t care. If I am going to die, everyone is going to die.’”).



Columbia Journal of Gender and law148 35.1

Johnson’s criminal trial are publically accessible; accordingly, my analysis of affect’s 
normative role in the production of Johnson as an “HIV monster” will proceed through a 
close reading of major journalistic accounts of Johnson’s life and the events of the trial. 
I will begin by situating this discussion within the larger narrative of Johnson’s life that 
these sources present, and I will then engage accounts reporting on the trial. Finally, I will 
examine the tactical strategies that led to Johnson’s successful appeal of his verdict in the 
Eastern District of the Missouri Court of Appeals.119

A.  Siting/Citing the Chrysalis of “Tiger Mandingo”

Of the biographical information contained within various journalistic accounts, a 
picture has been painted of a young Black man who understood well the poisonous lacing 
of queer male desire with racialized domination. Johnson, born in 1991 in Indianapolis, is 
the youngest of “his single mother’s five sons,” never having met or known his father.120 
Soon after beginning his elementary education, Johnson was diagnosed with dyslexia and 
was enrolled in special education programs to address other learning disabilities.121 Steven 
Thrasher, author of two prominent articles chronicling Johnson’s arrest and prosecution 
for HIV transmission, describes Johnson as having been aware “from a young age that his 
best shot for success was via his athletic body,”122 and, though he considered participating 
in various sports, Johnson demonstrated a clear penchant for wrestling.123 Johnson’s 
enjoyment of wrestling was, unfortunately, dampened by the fear of homophobic reactions 
from teammates if he were to disclose his queerness.124 

Johnson experienced much success as a member of the wrestling team of his high 
school, eventually leading him to adopt the nickname “Tiger,” inspired by an animal-

119  I am emphatically indebted to the kindness and generosity of Samuel Buffaloe, the Missouri State Public 
Defender who served as Johnson’s counsel during the appellate proceedings, for sharing with me the briefs 
he submitted on Johnson’s behalf. These documents were otherwise unavailable on legal databases, and this 
discussion would have certainly suffered in their absence.

120  See Thrasher, College Wrestling Star, supra note 1.

121  Id. (“Both Johnson and his mother said that he has dyslexia and was enrolled in special education.”).

122  Id.

123  Id. (“While he flirted with other sports, he liked wrestling partially, he said, because unlike ‘a team sport, 
you can’t point the finger at another person . . . you can only point the Finger at yourself.’”).

124  See id. (quoting Johnson as having acknowledged that he “wasn’t sure whether [he] would be accepted 
in the wrestling community” if he disclosed that he was queer) (internal quotation marks omitted).



Columbia Journal of Gender and law 14935.1

print shirt Johnson often wore to matches.125 Despite his fears of homophobic reprisal by 
teammates and other members of the wrestling community, Johnson simultaneously began 
to publicly explore the dimensions of his queerness, “walking in ballroom drag house balls 
in Indianapolis . . . [in] a style known as BQ (‘Butch Queen’) Body.”126 Thrasher notes that 
it “was in the ball era of [Johnson’s] life when ‘Tiger’ became ‘Tiger Mandingo,’”127 an 
appellation given to Johnson by a friend in high school who “refused to tell him what it 
meant.”128

Noting that the etymology of “Mandingo,” an allusion to the motif of a “brave [B]lack 
slave fighter,”129 appealed to him, Johnson expressed equal favor for the term’s additional 
meaning, which he knew to mean “a black man who is hung.”130 Johnson’s presentation as 
“Tiger Mandingo” won him many sexual paramours, encouraging Johnson to experiment 
“with [the] sexually charged outlaw and slave motifs” intimately connected to the image 
of the “Mandingo” in his self-made photographs for dating websites.131 Thrasher does not 
mince words on the former point: “Johnson was not the only person who enjoyed the 
role-playing—his persona had no shortage of willing white sex partners in St. Charles 
who wanted to be ‘seeded’ by a strong black bull.”132 Johnson would end up in St. Charles 

125  Id. (“[A]s a teenager, Johnson presented as straight, becoming ‘Tiger’ the wrestler after he started wearing 
what he calls his ‘lucky tiger shirt’ to matches.”). For an image of the shirt that inspired Johnson’s name, see 
Tiger Mandingo, FaceBooK (May 19, 2013), https://www.facebook.com/photo.php?fbid=478204138918010 
[https://perma.cc/X43P-HLRH].

126  Thrasher, College Wrestling Star, supra note 1.

127  Id.

128  Id.

129  Id. (citations omitted).

130  Id. (citations omitted).

131  Id. Johnson employed various iterations of “Tiger Mandingo” when creating social media accounts. On 
Twitter, Johnson used the name “Michael Mandingo” and the handle “@TigerMandingo.” Michael Mandingo 
(@TigerMandingo), TwiTTeR, https://twitter.com/tigermandingo [https://perma.cc/25X5-PRXJ]. On Facebook, 
Johnson did not use his first name or surname on his profile; instead, he registered himself as “Tiger Mandingo” 
and parenthetically referenced the House of Mizrahi, a famous drag house. Tiger Mandingo, FaceBooK, https://
www.facebook.com/TigerSaidSo [https://perma.cc/JAK4-Z2EG]. It would be on Instagram, a platform 
popularly used to upload images and photographs, where Johnson would most explicitly experiment with 
sexually racialized motifs. See @tigermandingo, iNSTaGRam (Sept. 24, 2013), https://www.instagram.com/p/
eocxhFpDxL/ [https://perma.cc/5T2Z-FY33]; @tigermandingo, iNSTaGRam (July 31, 2013), https://www.
instagram.com/p/cbfjwFJD-z/ [https://perma.cc/C8CD-TDEE].

132  Thrasher, College Wrestling Star, supra note 1.



Columbia Journal of Gender and law150 35.1

following a series of state and national wrestling successes that led to a scholarship from 
Lindenwood University, a private educational institution that emphasizes Judeo-Christian 
values and its relationships with local churches.133

B.  State of Missouri v. Michael L. Johnson: The Criminal Trial

Johnson’s trial began on May 11, 2015, more than eighteen months after his arrest 
on the Lindenwood campus. Thrasher’s account of the trial as a spectacle of sexualized 
racialization, as the inscription of American carceral dynamics onto the Black male body, 
resonates with chilling familiarity. The criminalization of Black male sexuality, symbolized 
with a cruel irony by Johnson’s adoption of the appellation “Mandingo,” undergirds the very 
structure of Johnson’s prosecution. And, as matters unfolded at trial, Johnson’s prospects 
became incredibly grim.

Heather Donovan, the public defender assigned as Johnson’s attorney, suffered from 
an almost continuous loss of credibility throughout the trial. During the process of jury 
selection, for example, Donovan made the almost implausible error of stating to a pool of 
potential jurors that Johnson was “guilty until proven innocent.”134 Donovan’s display of 
accidental confusion was, unfortunately, sustained throughout much of the trial; Donovan’s 
apprehension ultimately crystallized in the form of complete silence as the prosecutor 
insidiously paraded a series of sexualized images of Johnson’s body amidst a sea of white, 
petite, queer male witnesses, all of whom claimed to have been endangered by Johnson.135 
During the prosecution’s direct examinations, Johnson seldom materialized in the familiar 

133  See Lindenwood University—Tradition Like No Other, liNdeNwood: aBouT liNdeNwood, http://www.
lindenwood.edu/about/ [https://perma.cc/EAK8-SWS3] (“Lindenwood is an independent institution firmly 
rooted in Judeo-Christian values. Those values include belief in an ordered, purposeful universe, the dignity of 
work, the worth and integrity of the individual, the obligations and privileges of citizenship, and the primacy 
of truth.”).

134  Thrasher, Black Body on Trial, supra note 8.

135  Id. Witnesses called by the prosecution included Dylan King-Lemons, “a lithe young blonde man,” 
who testified that Johnson had definitively infected him with HIV (despite having stated to the police at a prior 
interview that Johnson had not been his only sexual partner); Andrew Tyron, described as a “tall, thin, blonde 
Lindenwood University cheerleader,” who made statements on the witness stand that contradicted videos of his 
sexual encounters with Johnson that the two had mutually agreed to film; Charles Pfoutz, a “[w]iry and pale” 
man whose lies during the prosecutor’s examination led to an aggressive inquisitorial parrying with Donovan; 
and Filip Cukovic, “a slim Serbian exchange student [who] testified that he found Johnson ‘unusual because 
he was [B]lack,’ [as] there were only white people in his home country.” Id. Cukovic stated during direct 
examination that, after learning that Johnson was HIV positive, he became too “scared to even touch himself.” 
Id. (citations omitted).



Columbia Journal of Gender and law 15135.1

form of a living, breathing person. Instead, the “person” known as Michael Johnson was 
displaced by the dangerous Black body of Tiger Mandingo, an amalgamation of angles, 
contours, and sinew invidiously interpellated as a violently ejaculating, insatiably appetitive 
Black penis.136 Wildly overwhelmed by the magnitude of the case and the escalating ire 
of prosecutor Philip Groenweghe, Donovan was eventually reduced to tears when she 
and Groenweghe were called to the judge’s bench; Donovan left the courtroom without 
explanation immediately thereafter, returning in about an hour’s time.137 On the trial’s final 
day, Groenweghe urged the jurors to keep the public safe from Johnson, whom he described 
as “roam[ing] the world with a ‘calling card’ of ‘HIV with a tint of gonorrhea mixed in.’”138 
It took the jury two hours to find Johnson guilty of recklessly transmitting HIV to one of his 
partners and of “exposing or attempting to expose” four other men to HIV.139

The next day, the jury convened to hear evidence and arguments as to the appropriate 
sentence for Johnson.140 Amidst the testimony of parents, fellow students, and the single 
person who spoke on Johnson’s behalf, it was Groenweghe’s closing argument that 
unequivocally struck the chord of the juridico-affective discourse of HIV criminalization.141 
Comparing Johnson’s case to the various murder cases he had prosecuted throughout his 
career, Groenweghe stated that this case was emphatically worse: Whereas a murder ended 
when a gun or knife killed someone, “the AIDS virus that passed through Johnson could 
still be killing people for years.”142 From “the perspective of HIV and its ‘mindless agenda,’ 
[Groenweghe] said, Michael Johnson was the ‘perfect host,’ because he helped the virus 
spread by having sex with ‘one young man after another.’”143 Groenweghe concluded with 
the observation that “HIV could wind up killing someone who had ‘never heard of Tiger 
Mandingo and who might not even be gay.’”144 It took the jury about an hour to return 

136  See id. (“Characterized by his sexual partners as being ‘very large,’ ‘too tight’ for condoms, and too big 
to fit in a mouth ‘due to his large size,’ Johnson/Tiger’s penis was described in unusually graphic and at times 
almost absurd detail in police reports and later on the stand.”).

137  Id.

138  Id.

139  Id.

140  Thrasher, Black Body on Trial, supra note 8.

141  Id.

142  Id.

143  Id.

144  Id.



Columbia Journal of Gender and law152 35.1

with a sentence of sixty years in prison; at a final sentencing hearing two months later, 
the presiding judge allowed the sentence to be split and to run concurrently, resulting in a 
prison sentence of thirty years.145

Thrasher’s account of Johnson’s trial, as well as his episodic biographical account of 
Johnson’s life prior to his arrest and incarceration, illuminates the affective saturation of 
HIV-criminalization jurisprudence; the threat of immunological failure, of bodily seepages 
and unexpected susceptibilities, and of an appetitive virus twisted together in the portrait 
of monstrosity presented to the jury. The fear of bodily intermingling and the dangerous 
opacity of a body’s sexual history were reiteratively invoked throughout the trial, though 
the articulation of such paranoia had not begun in the courtroom. Prior to the trial, Thrasher 
was able to interview a member of Johnson’s wrestling team at Lindenwood on the condition 
of anonymity, and though his teammate described Johnson as having “a good personality,” 
he noted that Johnson “also never quite fit in.”146 When the wrestling team learned 
that Johnson was queer, no specific issues arose, but Johnson’s teammate described an 
unwillingness on behalf of all Johnson’s teammates to practice with him further. Johnson’s 
teammate queried why “people around the poverty line . . . continually choose to infect one 
another [with HIV],”147 ultimately concluding that the only viable answer was “because 
they get selfish pleasure in one aspect, they’re selfish and greedy for that short pleasure 
that takes them to another place, because of all the pain they’ve had to deal with.”148 The 
wrestler described Johnson as likely having suffered from “a lot of demons,” but he was 
adamant about the inexcusability of Johnson’s behavior: “[Johnson could have] kept the 
HIV to himself. Instead, he decided to be selfish and to infect others.”149 This sentiment was 
echoed among students at Lindenwood, one of whom demonized Johnson as Hitler-esque 
and then described the anxiety Johnson’s memory as a student had firmly implanted in his 
mind: “Now when I get with a girl, in the back of my head I have to worry, was she with 
him? Or was she with someone who was with him?”150

The emphasis the interviewed Lindenwood student placed on the paranoia that a future 

145  Id.

146  Thrasher, College Wrestling Star, supra note 1.

147  Id. (citations omitted).

148  Id. (citations omitted).

149  Id. (citations omitted).

150  Id. (citations omitted).



Columbia Journal of Gender and law 15335.1

sexual partner may have had a male sexual partner who may have been intimate with 
Johnson underscores the capacity of the juridico-affective to corrosively disorient both 
time and space within the context of HIV criminalization. The presentation of affective 
paranoia often takes the syntactical form of the future anterior, where an event is posited as 
definitively occurring in a future that has not yet transpired. Affect’s collapse of temporality 
reorganizes the economy of truth associated with the imminence of bodily sensation. In his 
superficial meditation on Johnson’s reason for transmitting HIV to others, for example, 
Johnson’s wrestling teammate simultaneously discusses the weight of past demons, the 
need of present pleasure, and the dangers of a future constituted by the viral mingling of 
that past and present. 

The temporal disorientation achieved by the conjuring of affect frames the concluding 
arguments Groenweghe proffered during the sentencing phase of the trial. Groenweghe 
divested Johnson of his status as a psychically viable subject by naming him the “host” 
of HIV, which acted out its “mindless agenda” in the form of relentless transmission to 
other “host” bodies. An argument no doubt subtended by Johnson’s intelligible cognitive 
disabilities, Groenweghe’s statement demanded Johnson’s incarceration because of the 
danger his body, now virally possessed, presented to a public that could not control it. The 
subjectification of HIV as the viral master of Johnson’s body materialized in Groenweghe’s 
subsequent comment, where he spoke of the looming chance that someone who had never 
heard of “Tiger Mandingo” or who was not even “gay” may contract the virus inhabiting 
Johnson’s body. Notably, by specifically invoking both the racialized pseudonym Johnson 
used and Johnson’s queerness, Groenweghe spoke to the fear that first propelled HIV-
criminalization law—that HIV might manage to escape Black communities and queer 
communities and come to infect white heterosexual communities.  

C.  The Body of “Tiger Mandingo” on Appeal

Approximately a week after Johnson was sentenced to thirty years in prison by the 
trial judge, Heather Donovan withdrew as counsel for Johnson, replaced by Missouri State 
Public Defender Samuel Buffaloe.151 Through counsel, Johnson appealed his conviction in 
the Circuit Court of St. Charles County, Missouri, to the Eastern District of the Missouri 
Court of Appeals, filing a brief on April 19, 2016, which sought vacatur of his sentence 
and remand for a new trial.152 Johnson argued three points on appeal: first, that the trial 

151  Entry of Appearance and Withdrawal of Counsel, State v. Johnson, 513 S.W.3d 360 (Mo. App. E.D. July 
24, 2015) (No. ED103217).

152  Appellant’s Brief, State v. Johnson, 513 S.W.3d 360 (Mo. App. E.D. Apr. 19, 2016) (No. ED103217).



Columbia Journal of Gender and law154 35.1

court had erred in admitting into evidence excerpts of phone calls Johnson had made while 
in jail because “the State [had] failed to disclose the statements until the morning of the 
first day of trial,” thereby violating Rule 25.03 of Missouri Criminal Procedure;153 second, 
that the trial court’s failure to issue a curative instruction after the prosecution introduced 
unsworn testimony for which “no evidence had been adduced at either the guilt phase or 
the sentencing phase of the trial,” in violation of Article I, Sections 10 and 18(a) of the 
Missouri Constitution;154 and, third, that Johnson’s sentence violated his “right to be free 
from cruel and unusual punishment.”155 After receipt and review of the state’s reply brief, 
Johnson waived the second of his three claims on appeal because of an unrealized error in 
reviewing the trial transcripts; he maintained his first and third arguments and awaited a 
decision from the appellate court.156

On December 20, 2016, the Missouri Court of Appeals issued its decision, holding 
that “the trial court [had] abused its discretion with respect to Johnson’s first point on 
appeal.”157 All but dispositive in the court’s opinion was the glaring temporal chasm 
between Johnson’s service of a Rule 25.03 request on the prosecution and the prosecution’s 
eighteen-month delay in fulfilling that legal obligation.158 Although a discovery request 
made under Missouri’s rules of criminal procedure must be answered within ten days after 
service, Missouri’s procedural law “establishes an ongoing duty requiring the State to 
supplement its [initial] response in the event it acquires or learns of additional responsive 
material.”159 The prosecution asserted in its reply brief that there existed “no evidence” 
suggesting it possessed the recordings in question at any time before they were shared with 

153  Id. at 23; see also mo. Sup. cT. R. 25.03(A)(2) (mandating that “the state shall, upon request of 
defendant’s counsel, disclose to defendant’s counsel . . . [any] written or recorded statements and the substance 
of any oral statements made by the defendant”).

154  Appellant’s Brief, supra note 152, at 32.

155  Id. at 37.

156  Appellant’s Reply Brief at *7, State v. Johnson, 513 S.W.3d 360 (Mo.App. E.D. Aug. 30, 2016) (No. 
ED103217), 2016 WL 4722619 (“After reading the pages in the transcript cited by the State, undersigned 
counsel agrees that he overlooked this testimony in writing Mr. Johnson’s initial brief. Undersigned counsel 
agrees that the State’s statement during closing argument was supported by the evidence. Undersigned counsel 
therefore waives this claim.”).

157  State v. Johnson, 513 S.W.3d 360, 363 (Mo. Ct. App. Dec. 20, 2016) (transfer denied Apr. 4, 2017).

158  Id. at 363 (observing that the state had disclosed its recordings of Johnson’s phone calls “approximately 
a year and a half after Johnson had on November 26, 2013, served on the State his Rule 25.03 discovery 
request”).

159  Id. at 364.



Columbia Journal of Gender and law 15535.1

Johnson’s counsel, thereby vitiating any affirmative duty to disclose the evidence prior 
to the date of trial.160 However, when Johnson’s counsel objected to the admission of the 
recordings at trial, the prosecution stated unequivocally that it had “intentionally withheld 
the recordings from the defense to gain a strategic advantage.”161 These recordings proved 
pivotal to the prosecution’s successful conviction of Johnson at trial, as they were used 
“on cross-examination of Johnson to impeach his testimony that contrary to the victims’ 
claims, he had not failed to disclose to them before engaging in sexual relations with them 
that he was HIV positive.”162 The court accordingly held that the prosecution’s “blatant 
discovery violation is inexcusable” and denied Johnson his due process rights, requiring 
reversal of his conviction and remand for a new trial.163

CODA: BLACK MALE QUEERNESS AND THE PLEASURE-DANGER OF 
AFFECT

The reversal of Johnson’s conviction was, in the end, the function of a discovery 
violation; the court did not reach the question of whether Johnson’s sentence was cruel 
and unusual and thus constitutionally impermissible. Missouri’s law, now three decades 
without alteration, remains ossified within the state’s penal codex. Framed by a long history 
of failed challenges to HIV criminalization,164 the question of how to best resist a regime 
that criminalizes sexual personhood is painfully baffling. In my analysis of Johnson’s 
trial and the decisional and statutory law preceding it, I sought to document how affect 
fortified the jurisprudential economy of HIV criminalization. Johnson’s case underscores 
with particularity the confluence of institutional and social discourses—from the “benign” 
literature of public health to the racist, sensationalist media reporting on HIV-transmission 
prosecutions—that draw a reductive causal relationship between Black queer men’s sexual 
behavior and the high rates of HIV prevalence among them. In conclusion, I would like to 
offer provisional thoughts both on the possibilities of legal resistance and on the necessity 
of challenging dominant conceptions of HIV and its racialization. 

160  Id. at 365.

161  Id.

162  Id. at 367.

163  Id. at 368.

164  See Buchanan, supra note 13, at 1233–35 (noting that nondisclosure laws, in existence since the 
early 1990s, have consistently survived constitutional challenges and that, despite the federal government’s 
recent questioning of the utility of HIV criminalization, states have generally refused to repeal their HIV-
criminalization laws).



Columbia Journal of Gender and law156 35.1

Often, constitutional challenges to HIV-criminalization laws argue that such laws 
violate the rights guaranteed by the Free Speech Clause of the federal Constitution. Indeed, 
such an argument was made in a Missouri case at the very time that Johnson was appealing 
his conviction. In State v. S.F., S.F., the defendant, appealed her conviction for recklessly 
exposing another person to HIV165 (the same crime of which Johnson was convicted) on 
the theory that the Missouri law “infringe[d] on her constitutional rights to free speech and 
privacy by compelling her to disclose to potential sexual partners that she has HIV.”166 The 
Supreme Court of Missouri rejected both constitutional arguments in its en banc decision. 
With regard to the defendant’s First Amendment claim, the court held that the Missouri’s 
HIV-disclosure law “regulates conduct, not speech,” and any speech incidentally compelled 
by the law cannot be deemed to violate the rights protected by the First Amendment.167 With 
regard to the defendant’s claim that the statute violates her fundamental right to privacy, the 
court stated that the statute in question criminalized sexual conduct objectively understood 
to be harmful because of the potential transmission of HIV.168 Any claim to privacy cannot 
be reconciled with conduct that jeopardizes the life of another individual.

HIV-criminalization laws have not, however, been thoroughly subjected to constitutional 
scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Under the Equal 
Protection Clause, state action “neither involving fundamental rights nor proceeding along 
suspect lines” is subject to rational-basis review.169 Under the rational-basis standard, 
the state law under scrutiny will survive constitutional attack if the government can 
successfully demonstrate that the law “bear[s] some rational relationship to legitimate 
state purposes.”170 While there is no doubt that a state may assert the reduction of HIV 
transmission as a legitimate interest, a penal law like that in effect in Missouri depends upon 
a fundamentally unreasonable and arbitrary method of HIV transmission. In an amicus 
brief filed by multiple HIV/AIDS advocacy organizations in support of Johnson’s appeal, 

165  See mo. aNN. STaT. § 191.667(1)(2) (West 2016) (criminalizing acting “in a reckless manner by exposing 
another person to HIV without the knowledge and consent of that person to be exposed to HIV”).

166  State v. S.F., 483 S.W.3d 385, 386 (Mo. 2016) (en banc).

167  Id. at 387.

168  Id. at 389 (“Unlike the statute struck down in Lawrence, section 191.677 does not criminalize consensual, 
non-harmful sexual conduct. Section 191.677 regulates only sexual conduct that would expose another person 
to a life-jeopardizing disease when that person has not given consent to the conduct with knowledge of the risk 
of exposure.”) (emphases in original).

169  Heller v. Doe, 509 U.S. 312, 320 (1993).

170  San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40 (1973).



Columbia Journal of Gender and law 15735.1

three reasons are offered in demonstration of the absence of any reasonable relationship 
between Missouri’s HIV-criminalization law and the law’s purported goal of reducing HIV 
transmission. First, HIV-criminalization legislation has been “empirically proven to have 
no effect on the rate of HIV infection.”171 Second, Missouri’s law is “both overinclusive, 
criminalizing behavior that carries no risk of infection, and underinclusive, singling out 
HIV among all other communicable diseases,” rendering it constitutionally defective.172 
Third, Missouri’s law is ultimately counterproductive, “in that it provides powerful reasons 
for people living with HIV not to get tested and not to disclose their status to prospective 
sexual partners.”173 The confluence of these three factors suggests an essential arbitrariness 
to Missouri’s HIV-related penal regime, and, under Supreme Court precedent, an effect 
argument could be made that the law violates the Fourteenth Amendment.

Recourse to the law, however, is often insufficient in situations of deeply embedded 
social stigma. HIV-criminalization law, particularly through its emphatic recital of 
heterosexuality’s most affective valences—including senses of bodily security and the 
reversal of an ongoing sense of susceptibility and leakiness—represents one site of a larger 
normative project requiring the aggressive detangling of sexuality’s latent contradictions, 
which include its relationship to processes of racialization and racialized subjectification. 
And, it is perhaps HIV’s capacity to unequivocally precipitate those latent contradictions 
constitutive of both sexuality and race that has mired discourse surrounding HIV prevention, 
sexual pleasure in the age of an epidemic, and racialized subjectivity in theoretical paralysis. 

How, then, to theorize the racialization of affect—and its profound impact on HIV-
criminalization jurisprudence—without forfeiting affect’s potentiality as a counter-
hegemonic site of a politics of desire? Stephen Michael Best suggests that the racialized 
libidinal economies subtending Black male sexuality are those “of (‘black male’) sexual 
excess and (‘black male’) capitalist lack.”174 Black male sexuality is for Best the product 
of a generative paradox, and the interpellation of the Black male sexual subject occurs at 
the intersectional point of the excessive and the lacking. These concurring antipodes thrust 
the Black male subject into a state of precarious flux, where the spatiality of other bodies 
reorients the situatedness of the Black male subject in uncharted, unpredictable ways. As the 

171  Brief for AIDS Law Project of Pennsylvania et al. as Amici Curiae Supporting Appellant at 18, State v. 
Johnson, 513 S.W.3d 360 (Mo. App. E.D. Apr. 14, 2016) (No. ED103217).

172  Id.

173  Id. (emphases in original).

174  Stephen Michael Best, “Stand By Your Man”: Richard Wright, Lynch Pedagogy, and Rethinking Black 
Male Agency, in RepReSeNTiNG BlacK meN 111, 112 (Marcellus Blount & George P. Cunningham eds., 1996).



Columbia Journal of Gender and law158 35.1

subject’s body takes flight, the affective intensities constituting and subordinating him—
sensations of excess and lack—stimulate the surfaces of other bodies. These stimulations, 
however, are not necessarily the result of the tactile interconnection of skin. Too often, the 
affective resonance of Black male sexuality has been constructed as the anticipation of an 
impingement, a fear that “overwhelms us and pushes us back with the force of its negation” 
without ever reaching the temporal present, which undergirds this excitation.175 The Black 
male sexual subject is consigned to a space of multiple social disqualification, and the 
constraining impression this disqualification inscribes onto the body is only amplified by 
queerness.176

In a different register, Marlon M. Bailey offers a prefatory theorization in “Black Gay 
(Raw) Sex” of Black queer male desire that addresses the misattributions of life-destructive 
behaviors to Black gay men vis-à-vis their sexual practices.177 Although Bailey does not 
sow his analysis with the language of affect, his normative analytic of “deep intimacy,” 
which provides an alternative narrative of how Black queer men address a need for “a 
closeness and a ‘being desired and wanted’ in a world in which [B]lack gay men are rarely 
desired and wanted,” usefully informs the foundation of an affective rereading of Black 
queer male subjectivity.178 Bailey propounds the integral role that deep intimacy plays in 
the reconstruction of an epistemology of desire for Black male queer subjects, reorienting 
the destructive doubling of white supremacy away from its racialized oppression and 
toward an understanding of the absolute need for the “sensual and tactile pleasure of skin-
to-skin sexual contact” for the sense of closeness and connection that Black queer men—
and Black persons living in the diaspora of transcontinental slavery—find life-affirming.179 
If the theorization of Black queer male subjectivity embraces the productivity of paradox 
and contradiction in the interpellation of the subject, then the putative riskiness associated 
with condomless sex necessarily demands an alternative reading that “involves ‘flesh-to-
flesh, mucous-membrane-to-mucous-membrane [pleasures],’ along with all the hardness, 

175  SaRa ahmed, The culTuRal poliTicS oF emoTioN 65 (2004).

176  Although this is not the subject of my discussion here, I believe it is worthwhile to question whether Black 
heterosexuality is necessarily “heterosexual” as constituted and regulated by a racialized heteronormativity. 
That there may be something inevitably “queer” in the open defiance of constructions of Black sexuality as the 
abject space that defines the outer limits of white supremacist, heteronormative sexuality represents a site of 
political contestation that demands analysis.

177  See Bailey, supra note 4, at 239–61.

178  Id. at 253 (citations omitted).

179  Id. 



Columbia Journal of Gender and law 15935.1

softness, warmth, and wetness of sex.”180

Bailey advocates on behalf of the immensely transformative power of skin-to-skin 
connection, where the sense of bodily excitation and bodily intermingling effectuates a 
sense of tethering to a world acutely bent toward Black social death. The affective resonance 
of bodily impression, of bodily pressures concurrently impinged and extruded, is no longer 
read as the anticipatory danger of a Black male sexuality in need of discipline. Instead, the 
yearning for connection becomes the valence through which Black queer male sexuality 
can be understood to flourish. The question therefore remains: Must we pathologize those 
Black queer men who choose to have sex without a condom, or can we forge a space in 
which the condom can be understood, despite its potential for lifesaving, as a barrier to the 
pleasures and satisfaction of a kind of sex that may speak to the craving for deep intimacy 
that runs counter to Black queer men’s endless experiences of social disqualification, 
marginalization, alienation, and life-deprivation?

180  Id. at 254 (citations omitted).