Georgia

Georgia adopted HIV-specific criminal laws in 1988 that criminalised non-disclosure in multiple contexts including sexual intercourse, sex work, needle-sharing and blood donations. It also criminalised perceived HIV ‘exposure’ against law enforcement through bodily fluids. In 2022, Georgia’s laws were reformed, significantly reducing the scope of HIV criminalisation in the state.

A provision criminalising ‘reckless conduct’ made it an offence for people living with HIV to engage in certain activities without prior disclosure of their status. This covered sexual activity including vaginal, anal, or oral sex, offering or consenting to sex for money or soliciting for ‘sodomy’ (regardless of whether sex takes place), sharing of needles or syringes they had previously used, and donating blood, fluids, or body parts. This provision was a felony offence carrying a sentence of up to ten years’ imprisonment. In all cases, neither intent or actual transmission were required for this offence, and there were no defences for condom use or low viral load.

The same provision made it an offence for a person living with HIV (or hepatitis) to commit an ‘assault’ on a peace or correctional officer in the performance of their duties using their bodily fluids with intent to transmit. This provision was a felony and carried a penalty of five to 20 years’ imprisonment. The offence criminalised spitting which carries no risk of HIV transmission and biting, where the risk is infinitesimally low.

A 2018 analysis of HIV criminalisation cases by the Williams Institute demonstrated the scale of criminalisation in the state. It found that there were 571 HIV-related arrests involving 543 people from 1988 to September 2017, though there was virtually no enforcement of the law before 1997. Just 13% of arrests resulted in conviction for an HIV-related offence. In terms of demographics, the report showed that 63% of those arrested were Black, which was roughly proportionate to the number of Black people living with HIV in the state. 

Against this backdrop of significant enforcement of the law, local stakeholders began to organise to advocate for ‘modernisation’ of the law. The Georgia HIV Justice Coalition was officially formed in 2016, building on work which began in 2013, with the goal of spearheading a campaign to ‘decriminalise HIV’. Working closely with established organisations such as Georgia Equality, the Coalition was successful in getting this issue on the legislative agenda. The year 2020 saw the first attempt to reform the law in the legislature, with the Georgia House passing a bill to ‘modernise’ the law, however this was not passed by the Senate during the same legislative session, which was interrupted by the COVID-19 pandemic. In 2021, however, a second attempt to pass a modernising bill was successful, with Senate Bill 164 receiving overwhelming bi-partisan support in both houses. The Bill was signed into law in May 2022, finalising the ‘modernisation’ of Georgia’s HIV law.

This law made a number of significant changes which dramatically reduced the scope of HIV criminalisation in Georgia. Firstly, the elements of the non-disclosure provision which criminalised soliciting ‘sodomy’, needle/syringe sharing, and donation of blood, fluids, or body parts were all repealed, as was the ‘assault by bodily fluids’ provision. This leaves only the elements of the non-disclosure provision covering sexual activity and offering or consenting to sex work, but prosecutors must now prove both an intention to transmit and a ‘significant risk of transmission’, based on current scientific evidence. Although advocates had pushed for the remaining offences to be downgraded to misdemeanour, the felony level was retained, but the penalty was lowered to a maximum of five years’ imprisonment.

Georgia’s law is now much closer to international guidelines which call for criminalisation to be limited to cases of intentional and actual transmission, and this should result in dramatically lower conviction rates. However, it is important to note that the law still does not require transmission to take place, merely that it was a significant possibility, which leaves some scope for further improvements in the law.

The first case of HIV ‘exposure’ to be reported following the 2022 reforms related to a December 2022 arrest of a woman living with HIV, who allegedly spat on the arm of a police officer during the arrest. The media report suggested the woman had been charged with the ‘conduct of an HIV infected person’ offence, however the element of that offence concerning spitting is no longer in force. It is not clear whether this was an error in reporting or on the part of the police during charging, or whether the charge came under the general part of the offence which applies to anyone who ‘endangers the bodily safety of another person’, which is not specific to people living with HIV.

A subsequent case reported in July 2023, however, is an example of enforcement of the reformed law for alleged HIV transmission. In this case, a man living with HIV was arrested after allegedly failing to disclose his status to a partner who later contracted HIV. The woman lived with undiagnosed HIV for at least five years, before ultimately dying of an AIDS-related illness in 2022. The man was also accused of having unprotected sex with two other woman in 2023. He was charged with three counts of ‘Conduct by HIV Infected Persons’, each carrying a penalty of up to five years’ imprisonment, with the District Attorney’s Office noting that it would seek a felony murder charge for the death of the first partner. Notably, although the law now requires an intent to transmit, the case report does not suggest that the man wanted his partners to contract HIV.

The 2022 reform did not remove the possibility of people living with HIV being prosecuted under general criminal provisions. People have been convicted for aggravated assault on the basis of an alleged intent to murder, rape, or rob, or the use of a deadly weapon or object likely to cause serious bodily injury, arising from their HIV status. This has included convictions for conduct which carries little to no risk of transmission such as spitting and biting (see CHLP report below).

Furthermore, under state health laws people living with HIV may be compelled to submit to an HIV test, treatment, or isolation. 

For a detailed analysis of HIV criminalisation in Georgia, as well as all other US states, see the Center for HIV Law and Policy report, HIV Criminalisation in the United States: a Sourcebook on State and Federal HIV Criminal Law and Practice.