Imagine having to process the life-altering news that you’ve acquired HIV. Now imagine that your new health status can be weaponized against you, setting the stage for a felony conviction with a penalty of up to ten years in prison. The premise may sound like the story arc of a screenplay, but for Georgians living with HIV, the possibility of entering the criminal justice system because of HIV-related offenses is real, even more so if you’re Black, a sex worker, or identify as LGBTQ.

Download “HIV Criminalization in Georgia: Evaluation of Transmission Risk”

In Georgia, there are currently seven HIV-specific criminal laws in effect. And according to a report by the Williams Institute UCLA School of Law, 543 people came in contact with the Georgia criminal system under an HIV-specific law between 1988-2017, with 74 convictions, all of which required no proof of conduct likely to transmit HIV, with Black Georgians disproportionately on the receiving end of these laws. But depending on who you ask, HIV-specific laws and those who are prosecuted under such laws are deserving of the harsh penalties or have endured a miscarriage of justice fueled by HIV-related stigma and racism.

Brad Sears, Founding Executive Director of the Williams Institute at UCLA School of Law and author of the report: “HIV Criminalization in Georgia: Evaluation of Transmission Risk,” is working to have these laws amended if not entirely dismantled. Sears’ research bolsters efforts of HIV activists and coalitions across the country who are working to reform HIV-specific laws that many believe are rooted in bias against people of color, sexual minorities, and of course, those living with HIV.

“In Georgia, almost two-thirds of the people who are being arrested and convicted are Black men and women — predominantly Black men. This is almost like HIV status as a proxy for race, said Sears.

“You have a disease that already disproportionately impacts Black people. Then you have the current criminal justice system that disproportionately impacts Black people, and you make a crime out of that disease, you've got a huge disproportionality.”

Sears, who is also living with HIV, tells The Reckoning that the consequences of criminalizing HIV go far beyond the criminal justice system, fueling stigma, and affecting health outcomes for those living with HIV, making it “less likely for individuals to consistently engage in their own medical care and in public health efforts.”

“Stigma is real. If you're HIV positive, these laws define you as a vector of disease. That's what you are. You're a dangerous vector of disease. And other people should be aware of you,” said Sears. “I think as people with HIV, we get that message a lot. And this is the criminal law reinforcing that. This is how other people are being educated about who I am. And I'm a potential felon just because I have this disease,” he said.

With so much of the conversation about HIV criminalization centered on disclosure, or lack thereof, as the basis for HIV-specific laws and its subsequent punishment, Sears argues that individuals and not the criminal justice system should determine if the sexual conduct is immoral or blameworthy.

“That's just a different conversation than carrying that conversation into the criminal justice system, which is not going to be familiar with our communities and how HIV has impacted our communities. It's not going to have that familiarity. There's going to be prejudice. There's going to be bias,” he said.

“And just because we think something's wrong, it doesn't mean that we think it should be a felony, or somebody should be locked up.”

For Sears, HIV criminalization, particularly in Georgia as it intersects with race, is “a way to throw bigger sentences at people and get them to plead to all sorts of things.” He points to similarities across the country where HIV-specific laws are on the books, particularly in St. Louis, Missouri, where according to Sears, the St. Louis Police Department and prosecutors worked together to apply HIV-specific related charges to Black men living with HIV who were previously charged with resisting arrest.

“You have a disease that already disproportionately impacts Black people. Then you have the current criminal justice system that disproportionately impacts Black people, and you make a crime out of that disease, you’ve got a huge disproportionality.”

— Brad Sears

“The police or the prosecutors were finding out that those men were HIV positive, they would get rid of the resisting arrest charge—it would disappear. And instead, they would charge them with Missouri's HIV transmission crime, which says it's about sex, needle sharing, and any other conduct that could transmit the virus,” he said.

“So you started out with an allegation by a police officer of resisting arrest. The prosecutor changes that to the HIV crime that triples the sentence length. So you're talking about a couple of years, 10, 15 years. And then what do people do? They plead. And they not only plead that crime, suddenly they have 10 to 15 years and they're going to plead to other crimes. We need to think about this as a system and not about individual behavior,” said Sears.

HIV Laws and Science

Georgia’s HIV criminal laws were passed in 1998 and 2003, and notably include oral sex and other forms of sex that have little to no risk of transmitting HIV. These laws do not consider the scientific advancement of antiretroviral drugs that have successfully suppressed the virus in the body, allowing people living with HIV to achieve undetectable status, placing their partner(s) at zero risk for transmission. HIV laws across the country have been amended several times, and according to Sears, ”they just keep getting worse.”

“At what point do you say these laws were never legitimate? They never had any intent beyond a kind of fear and prejudice of that time around HIV?” asked Sears.

By carrying significant criminal penalties, HIV criminal laws “convey that the consequences of the disease are much more severe, if not fatal, despite the reality that, for most today, HIV is managed much like other chronic health conditions,” as stated in Sears’ report.

Georgia State Senator Chuck Hufstetler, a Republican representing District 52, introduced SB 164 during the 2021 legislative session. The bill aims to modernize current HIV laws with science by deeming certain conduct by a person living with HIV as unlawful if such conduct has a significant risk of transmission. The bill as it currently stands still carries a felony charge, which advocates hope to have reduced to a misdemeanor. The bill passed in both the House and Senate and is currently on hold until the January 2022 legislative session after an unrelated drug amendment stalled its passage.

While the outcome may be a setback for advocates of HIV criminal reform, Eric Paulk, Deputy Director of Georgia Equality, says the time in between legislative sessions provides an opportunity for education.

“We can still do work around working with prosecutors and judges about not bringing charges under the statute as is. There’s a lot that we can do in terms of an awareness campaign and advocacy points that are non-legislative,” said Paulk.

Paulk also tells The Reckoning that he hopes discussions about HIV criminalization will lend itself to the nuance the conversation deserves as it relates to race, disclosure, and the impact of HIV criminalization on communities of color, echoing Sears’ earlier statements that the focus should be on the system that criminalizes health status and less on individual behavior.

“Black people are not having sex that is considered more high-risk than anybody else. And so, the issue really is around systematic racism that has created disproportionality in systems and access.”

— Eric Paulk

“I’m not interested in the behavior. I'm interested in how we can change and reform systems because people are going to have sex,” said Paulk. “Black people are not having sex that is considered more high-risk than anybody else. And so, the issue really is around systematic racism that has created disproportionality in systems and access. And that's where I really want the conversation to land.”