HIV criminalization is a term used to describe statutes that either criminalizes otherwise legal conduct or that increase the penalties for illegal conduct based upon a person’s HIV-positive status. While only one HIV criminalization law can be found in federal law, more than two-thirds of states and territories across the United States have enacted their own HIV criminal laws. Some HIV criminal laws do not require the transmission of HIV, and in some states, these laws criminalize conduct that poses a negligible risk of transmission, such as spitting or biting.
Georgia has one statute that outlines the seven HIV-related criminal offenses under state law. It is divided into two subsections: (1) Ga. Code Ann. § 16-5-60(c): reckless conduct by a person living with HIV—this includes offenses related to sex work, needle sharing, sexual exposure, and blood and tissue donation—and (2) Ga. Code Ann. § 16-5-60(d): assault on a law enforcement or corrections officer with intent to transmit HIV or hepatitis. The purpose of this study was to provide an overall understanding of the enforcement of HIV criminalization laws in Georgia and assess any preliminary findings indicating disparities between subpopulations. Given the movement across the United States, including in Georgia, to modernize HIV-specific criminal laws to bring them in line with current medical science, analysis of the enforcement of the laws helps to inform policy and legislative decision-making with data and a deeper understanding of how the laws have been used in the real world.
Criminal History Record Information Data
Given the lack of comprehensive data on the use of HIV criminal laws in Georgia, Williams Institute researchers contacted the Georgia Crime Information Center at the Georgia Bureau of Investigation and requested access to criminal history record information (CHRI) data from the time of the laws’ enactment through the third quarter of 2017. CHRI data document all interactions an individual may have with the criminal justice system, from every event beginning at arrest through conviction, so these data provide a full chronological record of how these laws are being utilized.
- There may be disparities in enforcement of HIV criminalization laws related to geography, race/ethnicity, sex at birth, or sex worker (or suspected sex worker) status.
- HIV-positive Georgians in rural areas were more likely to be arrested for an HIV-related crime than those living in urban areas.
- Black men were more likely to be convicted of an HIV-related offense than White men.
- When considering the demographics of people living with HIV in Georgia, White women were more likely to be arrested for an HIV-criminal offense than other groups.
- Convictions for HIV arrests were three times as likely when there was a concurrent sex work arrest.
- Sex work offenses were more likely to involve women and particularly Black women.
- Overall, there were 571 HIV-related arrests in Georgia from 1988 to September 2017.
- There appeared to be almost no enforcement before 1997, after which, on average, there were 27 HIV-related arrests annually. In 2000, arrests reached a record high, with 63 arrests occurring that year.
- Individuals were arrested under HIV-related statutes in 79 out of the 159 counties in Georgia.
- Fulton and DeKalb Counties have the highest prevalence of HIV in the state, yet the proportion of HIV-related arrests was lower than expected. Fulton and DeKalb Counties represented 32% and 17%, respectively, of the people living with HIV in the state during that time, but only 17% and 3%, respectively, of the HIV-related arrests throughout the state.
- People living with HIV outside of metropolitan Atlanta were three times as likely to be arrested for an HIV-related offense as those within the metropolitan Atlanta area: 0.4% of all people living with HIV in the metropolitan Atlanta area experienced an HIV-related arrest, while 1.3% of all people living with HIV outside the metropolitan Atlanta area had an HIV-related arrest.
- However, in some smaller counties, as many as 10% of the residents living with HIV had experienced an HIV-related arrest. The counties with the highest arrest rates among people living with HIV were mostly rural counties clustered in the northern part of the state.
- In 31% of all reckless conduct incidents, the reckless conduct offense was the only crime that the person was arrested for or convicted of.
- Forty-four percent of all reckless conduct incidents also involved a seemingly unrelated arrest or conviction under a different statute (e.g., battery, resisting arrest, etc.).
- Among the remaining 25% of reckless conduct incidents, nearly half (49%) had some sort of concurrent drug offense in the same incident, indicating that the arrest may have been related to the needle sharing subsection of the code, 29% had a concurrent sex offense, indicating that they may have been related to the sexual exposure subsection of the code and 29% had a concurrent sex work offense, indicating that they may have been related to the sex work subsections of the code.
- More than six in ten people arrested under an HIV-related offense were Black (63%), and none of the people arrested were recorded as Latino/a.
- Black men and Black women were more likely to be arrested for HIV-related offenses than their White counterparts: 26% of HIV-related arrests were of White males, while 46% of HIV-related arrests were of Black males; additionally, 11% of those arrested were White females, while 16%were Black females.
- However, this disproportionality may have been reflective of disparate HIV rates among Black people in Georgia. When comparing the numbers directly to the underlying population of people living with HIV, White women appeared to be the group most disproportionately arrested under HIV-related laws: they made up only 3% of the population of people diagnosed with HIV in Georgia, but they were 11% of HIV-related arrests in the state.
- Overall, 13% of HIV-related arrests resulted in a conviction for an HIV-related crime. (Sixty-seven percent of incidents did not result in any conviction, and 19% had convictions for non-HIV-related offenses.)
- When analyzing case outcomes by race/ethnicity and sex, most groups appeared to have fairly similar results.
- The one exception was among men. When White men and Black men were compared directly, Black men were nearly twice as likely to be convicted of the HIV-related offense as White men (16% versus 9%, respectively).
- On the other hand, when men were arrested for an HIV-related offense plus other crimes, White men were more likely than Black men to be convicted of the non-HIV-related offenses and not the HIV-related offense (24% versus 15%, respectively).
- The data were also analyzed to determine whether conviction outcomes varied based on the types of other concurrent offenses that occurred in the same incident. The incidents that showed the most divergent outcome pattern were those that also had concurrent sex work offenses.
- Incidents involving sex work and HIV-related reckless conduct were the most likely to involve a conviction overall, whether that was for HIV-related reckless conduct or for some other offense (usually sex work).
- Incidents that did not involve sex work were more than twice as likely to result in no conviction compared to incidents that had concurrent sex work offenses (71% versus 26%, respectively). Concurrent sex work incidents were more likely to involve women, particularly Black women, than non-sex work incidents.
- Data point to some race-, sex-
, and geographic-based disparities in the application of these laws. However, they do not provide an explanation of the root causes of these disparities. Future research is needed to pinpoint factors leading to these differences.
- At the structural level, this includes assessing whether the disparities are a function of direct law enforcement targeting of White women, disparate prosecution of Black men, or higher HIV stigma in rural areas. Future research could also explore whether awareness of HIV criminalization laws has an impact on individual or community level norms regarding disclosure and risk behaviors.
- Future research should explore HIV-related criminalization in the context of an individual’s broader criminal history and whether a charge of an HIV crime impacts pleas, convictions, or sentences for other crimes.
- Future research could move beyond enforcement data to more accurately capture the impact and consequences of HIV criminalization from the perspective of affected individuals. For example: Are there differences in how HIV status is discussed or treated between law enforcement officers and various subgroups of people in contact under these statutes? How did contact under these laws affect future HIV status disclosure behavior?
- Utilizing additional methods to study this population may have the added benefit of gaining representation of the distinct experiences of gender and sexual minorities living with HIV.
This report provides an overview of the use and enforcement of HIV-related laws in Georgia. Preliminary analyses show some disparities based on race, sex, geography, and underlying related offenses. This is the second state in which the Williams Institute has provided comprehensive data analysis on the enforcement of HIV criminalization laws.