Margo Kaplan on Gawker, HIV, and Magic Johnson


Margo Kaplan (Rutgers-Camden)

Margo Kaplan is a new assistant professor of law at Rutgers-Camden.  After reading a recent Gawker post on NBA great Earvin “Magic” Johnson, she wrote the following, which we are happy to post:

“On Wednesday evening, popular blog aired a post offering a cash reward for the identity of the individual who transmitted HIV to Magic Johnson. It was particularly interested in confirming decades-old rumors that Johnson contracted HIV from sex with a man or transgender woman. The post came on the heels of a Frontline report on HIV in the African American community. Gawker editor A.J. Daulerio faulted Frontline for allowing Johnson to reveal only that he contracted HIV from having sex with numerous women. “[I]t seems odd,” Daulerio wrote, “that there’s been no follow-up about which of these women was HIV positive.”

One can imagine a world in which Johnson’s potential sexual activities might be legitimately newsworthy—say he denied that HIV was sexually transmitted or he waged a public campaign against the LGTBQ community. But that’s not the case. What will generate page hits for Gawker in this case is the public naming and shaming of an individual who is HIV positive and the public humiliation of Johnson if he engaged in something other than straight sex. Daulerio’s post coyly capitalizes on the stigma of HIV and the stigma of non-straight sex. In doing so, it plays to the very prejudices that keep people in the closet about their sexual orientation and their HIV status.

The post reflects more serious problems with how we as a society approach HIV. Sexual transmission of HIV provokes a mix of fear, disgust, anger, and fascination. We want information, but mainly information that give us someone to point to and say, “I’m not like that. That couldn’t happen to me.” As a result, even today people living with HIV are subject to discrimination and abuse, ostracized from their communities and families, and—as the Gawker post aptly demonstrates—derided in the press.

They are even subject to special criminal sanctions. It is currently a felony in several states to have sex with another person without revealing that you are HIV positive. This makes intuitive sense to a lot of people. But more often than not, these statutes reflect outdated information or even myths. For example, almost no statute provides a defense of having taken the precaution of using condoms. Several statutes criminalize sexual activities like receiving oral sex or using a sex toy, which pose risks of transmission so small they are only theoretical.

The punishments for these offenses are far more serious than for statutes that criminalize serious risk in other contexts. In some states, you may get a smaller sentence for playing Russian Roulette (a one in six chance of death) than having protected sex (less than one in 10,000 chance of transmission, depending on the sex act.) This is because most states’ maximum sentence for recklessly placing another person at risk of death or serious injury is one year. In contrast, HIV-exposure statutes carry an average maximum sentence of eleven years.

Why is sexual HIV exposure targeted so fiercely compared to the many other ways we expose each other to risk of death and injury? It’s not that it helps deter risky behavior. Studies have demonstrated that these statutes have no deterrent effect. In fact, several public health advocates argue the statutes may increase HIV transmission by discouraging people from being tested (most statutes only apply to individuals who know their HIV-positive status). This is a big problem given that two-thirds of transmission occurs where the transmitting partner doesn’t know she is HIV-positive.

Perhaps we target HIV-positive individuals in the law, in our communities, and—as Gawker demonstrates—in our media—because we want to believe that they are not like us. Maybe states criminalize levels of risk that are perfectly legal in other contexts because it’s not really about the risk. It’s about the perception that individuals infected with HIV are tainted, and sex with a person living with HIV is in itself harmful regardless of the risk of transmission. This perception allows us to ignore the numerous social and economic problems that contribute to HIV transmission in favor of the myth that the real problem is the type of people who get HIV, and we are not those kinds of people.

Magic Johnson shattered that myth for a lot of people. When he came out as HIV-positive, Americans were forced to recognize that even our heroes can get HIV. Yes, someone out there (perhaps more than one person) transmitted HIV to Johnson, and it’s possible Johnson had non-straight sex. But Gawker isn’t looking to disprove the very real fact that you can get HIV from sex with a woman. The story Gawker is looking for is only a story because some people still believe that HIV and non-straight sex are freakish. They aren’t. Let’s move on.”

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9 Responses

  1. Ken Arromdee says:

    “But Gawker isn’t looking to disprove the very real fact that you can get HIV from sex with a woman.”

    That’s technically true but misleading. Yes, showing that this case didn’t come from a woman doesn’t *disprove* that AIDS can be caught from a woman. But it can certainly *reduce the perceived probability* that it can be caught from a woman. (And if the perceived probability is higher than the actual probability, this may be a public service.)

    This is especially so since most people estimate probability poorly, in a way that highly depends on being able to think of specific examples. Disproving a specific example should have an impact on that.

  2. Margo Kaplan says:

    Ken: I see your point, but I have to disagree. I would be more sympathetic if Gawker were stating that Johnson’s case has lead people to overestimate the probability of female-to-male transmission and that his odds of female-to-male transmission were actually quite small. (Full disclosure–I have not crunched these numbers. I know the odds of transmission in one sexual encounter, but multiple partners and the presence of other STDs would significantly affect the likelihood Magic would get HIV in his lifetime).

    If Gawker wants to provide information on the likelihood of female-to-male transmission, they can provide those statistics in an article that focuses on that particular issue. In this article, Gawker provides some poorly explained statistics that don’t clarify much, and probably even add to the confusion. Moreover, they use these statistics to serve the end of trying to demonstrate Magic didn’t get HIV from sex with a woman, rather than using Magic Johnson’s case to demonstrate that vaginal transmission is unlikely in general. The point is clearly to stir curiosity about Johnson’s sex life, not to provide information on HIV transmission rates.

    I also think that using Johnson as an example in any case wouldn’t help people estimate probability any more clearly. Sure, properly used examples can help people understand statistics, but a helpful example shows what these statistics mean in real life. In this example, it might be useful to compare the chance of HIV transmission to a similar probability, or, if using Johnson’s example, perhaps to discuss how multiple partners can increase transmission probability using numbers that are the product of scientific studies that had appropriate sample sizes.

    But what the article is looking for isn’t useful in this way. It’s looking for the way Johnson actually contracted HIV (and the identity of the individual, which is not useful at all). It’s a fallacy to say “Johnson didn’t get HIV through vaginal transmission, therefore the odds of vaginal transmission are small” just as it’s a fallacy to say “Johnson got HIV through vaginal transmission therefore the odds of vaginal transmission are large.” The likelihood that Johnson (or any individual) would get HIV from female-to-male transmission is unaffected by whether in reality Johnson actually contracted HIV through female-to-male transmission.

  3. I. Glenn Cohen says:

    Margo, great post! Do you have any ideas about how FDA’s approval of OraQuick (for home HIV testing) last week is going to inflect (i) the public health advocate argument that these laws will discourage testing, and (ii) the political economy behind the criminalization laws?

  4. Margo Kaplan says:

    Glenn, great questions, and I think it’s hard to know the answer, especially because there hasn’t been definitive evidence of how criminalization laws influence testing incentives and how they do so. It makes sense to me that these laws provide disincentives for testing, but I think it’s likely a complex interaction of several testing deterrents. To many people, the test results have no upside. Treatment is one of the best reasons for testing because treatments today are so effective. But many people can’t afford treatment. Even if they can, the treatment may have side effects that outweigh the benefits in the short term (for example, missing work and losing their job because of nausea from the drugs or the need for checkups). Add to that the stigma of being HIV-positive, the possibility that it will cost them relationships and community ties, the fear of discrimination at work, all significant issues. Criminalization adds another disincentive and also contributes to the stigma that may be one of the most significant deterrents. Home testing can help mitigate some but not all of these testing deterrents. I think it’s very possible that home testing may unfortunately increase support for criminalization laws by giving lawmakers and constituents the false impression that home testing removes more obstacles than it actually does. I suppose it’s possible that the home tests could be used against these laws to argue that individuals should buy lots of kits and insist on testing their partners before having sex, but I doubt that argument would gain traction for several reasons. What are your thoughts?

  5. Ken Arromdee says:

    “It’s a fallacy to say “Johnson didn’t get HIV through vaginal transmission, therefore the odds of vaginal transmission are small” just as it’s a fallacy to say “Johnson got HIV through vaginal transmission therefore the odds of vaginal transmission are large.””

    Which gives you two competing fallacies that cancel each other out.

    If people are looking at Magic Johnson and overestimating the chance of getting it from a woman, then if they learn that he didn’t, it could correct their overestimate. You are correct that logically speaking, neither of these should affect their estimate. But if it affected their estimate anyway, affecting it in the opposite direction is merely undoing the damage.

  6. I. Glenn Cohen says:

    Margo, I don’t have strong thoughts on the issue though (plug alert) the Petrie-Flom Center at Harvard Law will have a panel discussion on November 5 about the implications of OraQuick for the law and also hopefully some discussion of the recent approval by FDA of Truvada for pre-exposure prophylaxis (PrEP) among those at high risk for sexually-acquired HIV infection.

    My own sense is that actually these home kits may complicate the proof of knowledge of one’s HIV status in such prosecutions, in that there will be no public record that you were tested except your purchase of the kit.

    I also think there is a very interesting question of what this will do to sexual relations among groups sensitive to transmission and who may be able to afford repeated use of the tests if the price point is low enough (especially gay men). Will some subset of the community build testing one’s sex partner into their sexual habit, the way public health educators urge us to ask partners about his or her status? What will that do to sex and sexuality in America? It reminds me a bit of the scene in Gattaca where Uma Thurman tests Ethan Hawke’s genome post a first date…we live in interesting times!

  7. Ken Arromdee says:

    Perhaps we target HIV-positive individuals in the law, in our communities, and—as Gawker demonstrates—in our media—because we want to believe that they are not like us.

    If the punishment is too severe, perhaps we are not concerned enough for people who might have HIV. But if the punishment was too light, you could equally argue that we are not concerned enough for people who it might be spread to.

    This ends up being a catch-22 where any possible situation could lead to negative speculation about “our” motivations.

  8. Jeff McCurry says:

    Not long after Magic was diagnosed with AIDS he went on a speaking tour to raise awareness. One of the stops was the University that I do sports photography for and I attended the press conference before the assembly with my son who was about 10 at the time. There were only about 30 of us in a small theater and my son sat in the front row and watched while I was farther back taking photos. After the questions were over Magic walked up to my son and introduced himself and asked my son what his name was and what he was doing there. He pointed to me and said “that’s my dad taking your picture.” That smile that has become so well known blew up and Magic said “well then he is going to have to take some pictures of us together.” The two of them posed together sitting, standing, high fiveing, and many others. Thanks.

  9. Margo, great post; thanks for continuing to illuminate an issue about which there is persistent ignorance.

    Here’s a link to a resource on our website, in The Center for HIV Law and Policy’s Resource Bank, that charts the data on HIV transmission routes and risks developed by those who have crunched the numbers, so to speak:

    Miraculously, the CDC finally, after years of pleas, also just posted info on HIV transmission risks:

    There was, by the way, a study published very recently suggesting that criminalization is in fact an HIV testing deterrent. It is or will be available via our website shortly.