Georgia’s HIV Criminal Law: Amplification of the HIV Epidemic among Atlanta Black Men Who Have Sex with Men


Author: Lamar Greene

 

The objective of this paper is to determine whether Georgia’s HIV-specific criminal exposure law leads to an increase in HIV transmission among Black men who have sex with men (MSM) in the Atlanta metropolitan area. This analytical paper utilizes systematic reviews, epidemiological studies, behavioral theoretical frameworks, and other sources to demonstrate the link between Georgia’s HIV criminal law and the high incidence of HIV cases among Black MSM in Atlanta. The paper argues that the HIV epidemic among Black MSM in Atlanta has endured due to several social and structural factors, ranging from HIV stigma to a lack of access to preventative and treatment services, and that Georgia’s HIV criminal law exacerbates said social and structural factors by further stigmatizing the disease and changing how people interact with HIV preventative and treatment services. The paper concludes that HIV should not be criminalized but instead treated as a public health issue. It recommends that Georgia repeal its HIV criminal law and increase efforts to destigmatize HIV, build trust among vulnerable communities, and increase access to HIV preventative and treatment services.

 

This paper argues that Georgia’s HIV criminal law leads to an increase in HIV among Black men who have sex with men (MSM) in Atlanta. The paper further defines HIV as a health outcome, Black MSM as a target population, and the social factors linking Georgia’s HIV law to a high incidence of HIV with recommendations provided at the end.

 

HIV Health Outcomes

Although there have been many notable advances regarding HIV treatment and prevention, HIV is and has been an enduring epidemic that affects the lives of many. Currently, there are more than one million people living with HIV in the United States. While the number of new HIV infections declined by 8 percent for the general population between 2010 and 2015, new cases continue to be reported, with more than 38,500 new HIV cases having been reported in 2015.[1] Moreover, HIV infections have been steadily increasing among key risk populations such as youth (e.g., ages 18–24), people of color, and people who inject drugs.[2]

Today’s HIV epidemic is not evenly distributed throughout the country. The American South accounted for roughly half of new HIV diagnoses in 2016.[3] Georgia is one of the states with the heaviest burden of new HIV diagnoses. While the national average rate of new HIV diagnoses was 14.7 per 100,000 citizens in 2017, Georgia’s rate was more than double: 31.8 per 100,000. Such new HIV diagnoses are concentrated primarily in large metropolitan areas such as Atlanta, with rates that have been compared to those of developing nations. In 2016, there were approximately 35,402 people living with HIV and 1,513 new HIV diagnoses in Atlanta, leading Dr. Carlos del Rio, co-director of Emory University’s Center for AIDS Research, to note that “[d]owntown Atlanta is as bad as Zimbabwe or Harare or Durban.”[4] In fact, the HIV epidemic in Atlanta has been spreading so rapidly and uncontrollably that doctors have suggested that all residents living in the metropolitan area take pre-exposure prophylaxis (PrEP), a medicine taken once a day to prevent HIV infection in people who are not currently infected with HIV.[5]

 

Atlanta Black MSM

While gay and bisexual men make up only 2 percent of the American population, they are by far the population most affected by new HIV infections.[6] In the United States, 67 percent of HIV diagnoses in 2016 were reported by MSM, and the population represented 56 percent of people living with HIV in 2015.[7] Black MSM, specifically, are the most disproportionately affected subpopulation in the United States. They accounted for the largest number of new HIV diagnoses in 2016, with 10,226 cases.[8] Moreover, a Centers for Disease Control and Prevention (CDC) study in 20 major American cities found that more than one in three Black MSM had HIV and that more than two-thirds of Black MSM were not aware of their infection.[9]

While the CDC study shows just how severe the HIV epidemic is for Black MSM across the country, rates of new HIV diagnoses among Black MSM in Atlanta are some of the highest in the nation. In 2017, approximately 10 percent of new HIV diagnoses among Black MSM across the United States occurred in the Atlanta metropolitan area.[10] Overall, the estimated HIV prevalence among Black MSM in Atlanta is 46 percent.[11] As if the current rates of HIV among Black MSM in Atlanta were not alarming enough, the CDC has projected that one in two Black MSM will be infected with HIV in their lifetime if current rates of new diagnoses continue.[12]

Numerous factors have led to the alarming prevalence of HIV among Black MSM in Atlanta and across the United States. Historically, doctors failed to report cases of HIV among Black men alongside the other initial cases of the epidemic. While the first cases of HIV are remembered as occurring in 1981, in reality, Robert Rayford was the first known person to die of HIV—in 1969.[13] Rayford was a 15-year-old Black teenager who presented swollen limbs and a deteriorating body to doctors, who thought he had acquired chlamydia from a same-sex partner and failed to treat his worsening symptoms. It was not until 1984 that scientists isolated the HIV virus and not until 1987 that scientists found HIV in Rayford’s tissue samples.[14]

Furthermore, when the CDC reported the five cases of HIV that took place among White MSM in California in 1981, there were two additional cases among Black men that were not reported. One of the cases involved a gay Black man, and the other involved a heterosexual Haitian man.[15] Michael Gottileb, the doctor who wrote the CDC report in 1981, was quoted telling the New York Times, “until recently, I wouldn’t have thought it mattered” regarding reporting these two HIV cases among Black men.[16] Not reporting the initial cases of HIV among Black men meant that awareness was not raised among Black MSM and research was not being done to understand how what came to be known as HIV was affecting this community. The lack of HIV awareness for both the medical community and Black MSM allowed HIV to spread silently among this population and has contributed to the disproportionate rates of HIV among Black MSM to date.

In addition to this history, according to a systematic review, the disproportionate rate of HIV infections among Black MSM is best explained by differences in social and structural factors.[17] Some of the main factors driving the disparity include stigma and internalized homophobia, constrained sexual networks, limited financial resources, and the lack of access to preventative services and treatment.[18] Among the relatively small population of Black MSM, members are more likely to engage in sexual relationships with others in the same group, causing the virus to spread more quickly. Furthermore, the lack of access to health care means that viral loads are high because a smaller proportion of Black MSM with HIV are receiving treatment.[19] Due to these social and structural factors, HIV for Black MSM becomes an issue of confined sexual networks and high viral loads.

 

Georgia’s HIV Criminal Law

Historically, there have been numerous federal departments and agencies involved in addressing the HIV/AIDS epidemic. The Ryan White Comprehensive AIDS Resources Emergency (CARE) Act was launched in 1990 to provide support and access to HIV care for people who were uninsured, underinsured, or could not otherwise afford it.[20] Notably, the act required states, in order to receive funding, to certify that their criminal laws were adequate to prosecute any person who was knowingly infected with HIV and intentionally exposed another person to the virus.[21]

The Ryan White CARE Act was rooted in the initial fear and panic that consumed America’s consciousness during the first reports of HIV cases in the 1980s. As a result of this legislation, 33 states created specific laws criminalizing people living with HIV for knowingly spreading the virus.[22] Today, a total of 67 laws explicitly focused on people living with HIV have been enacted in said 33 states, with the laws centered on criminalizing individual behaviors or resulting in additional penalties for people living with HIV. In 24 states, the law requires that people who are aware they have HIV disclose their status to their sexual partners, and 14 states require that people who are aware that they have HIV disclose their status to needle-sharing partners.[23] Many HIV activists argue that HIV criminalization laws do not consider the modern advances in HIV treatment such as antiretroviral therapy, which reduces HIV transmission risk, or in HIV prevention such as PrEP.

Georgia was one of the 33 states to enact HIV-specific criminal laws under the Ryan White CARE Act, and Georgia’s HIV criminalization laws are still in effect today. These criminal laws have two primary parts. First, the law states that reckless conduct by a person living with HIV is punishable as a felony with up to 10 years in prison, even if HIV is not transmitted.[24] Georgia defines reckless conduct as engaging in any of the following acts without first disclosing one’s HIV-positive status: engaging in vaginal, oral, or anal sex; sharing needles or syringes; offering or agreeing to engage in sexual intercourse in exchange for money; soliciting another person for sodomy in exchange for money; and donating blood, blood products, other bodily fluids, or any body organ or body part.[25] Under this provision of the law, a person who is knowingly infected with HIV can also be charged with a felony, and face up to 10 years in prison, for spitting or biting at someone—even though HIV is not transmitted through these behaviors.[26]

The second portion of Georgia’s HIV criminalization law states that, for individuals living with HIV (or hepatitis), assaulting a police or correctional officer with intent to transmit is punishable as a felony with 5–10 years in prison, even if the virus is not transmitted.[27] Blood, semen, vaginal secretions, saliva, urine, and feces are considered “deadly weapons” when used by a person living with HIV to assault a police or correctional officer.[28]

Atlanta’s burden of enforcement under Georgia’s HIV criminal law is not equally distributed. In 2017, 36 percent of all people with HIV-related arrests across the state of Georgia were in the metropolitan area of Atlanta (i.e., Dekalb, Cobb, Gwinnett, Clayton, and Fulton counties). Fulton County had the highest number of arrests in 2017, with 17 percent of HIV-related arrests in Georgia occurring there.[29] Such arrests were disproportionately made against Black men, with 46 percent of HIV-related arrests being made of Black males (as opposed to 26 percent HIV-related arrests being made of White males).[30]

 

Social Ecological Model

As shown in Figure 1, the Social Ecological Model may be used to demonstrate how the enforcement of Georgia’s HIV criminal laws in Atlanta lead to higher rates of new HIV cases among Black MSM in Atlanta. The model provides a conceptual framework for describing individual change within the context of social change.[31] Although the model has traditionally been used to demonstrate behavioral change, this paper applies the framework to a biological outcome under the assumption that Georgia’s HIV criminal law changes the behavior of Black MSM in Atlanta and, therefore, leads to higher incidence of HIV among this population. The social world is categorized into five levels of influence under this framework: public policy, community, organizational, interpersonal, and individual levels.[32]

Public policy is the outermost level of the Social Ecological Model and involves implementing as well as interpreting existing policy. Key stakeholders at the public policy level include federal, state, local, and tribal government agencies.[33] For the case of HIV criminalization, public policy includes the Ryan White CARE Act and Georgia’s HIV criminal laws. The public-policy level also includes the federal, Georgia, and Atlanta governments, which all work to oversee and enforce HIV criminal laws.

The community level is the next sphere of social influence and consists of the cultural values and norms that are commonly held.[34] For the case of HIV criminalization, community-level norms and cultural values are centered around homophobia, biphobia, and HIV stigma. The public-policy level interacts with the norms and cultural values present on the community level through the stipulation of the Ryan White CARE Act that required every state to certify that its criminal laws for HIV were adequate.[35] Seeing the manner in and degree to which HIV was criminalized influenced community consciousness by making individuals think that HIV was wrong and that any populations disproportionately affected by HIV, such as Black MSM, should be condemned.

The organizational level is the next sphere of social influence and consists of organizational rules, regulations, policies, and informal structures that are present within communities.[36] For the case of HIV criminalization, the organizational level consists of Atlanta prisons, the Atlanta police department, religious groups, and other organizations that view or legitimize community norms that stigmatize HIV and populations disproportionately affected by HIV. The community level interacts with the organizational level by identifying norms and cultural values surrounding HIV criminalization. Organizations then operate under the identified norms and cultural values surrounding HIV criminalization by including it in rules, regulations, and policies.

The interpersonal level is the next sphere of social influence and consists of interpersonal processes and primary groups that provide social identity and role definition.[37] For the case of HIV criminalization, the interpersonal level consists of sexual networks for Black MSM in Atlanta, as well as family members, police officers, and clinicians. The organizational level interacts with the interpersonal level by outlining the rules, regulations, and policies that people are mandated to operate under. The organizational level also helps institutionalize community norms and values that may affect views on homophobia, biphobia, and HIV stigma among the social-sexual networks of Black MSM in Atlanta at the interpersonal level.

The individual level is the final sphere of influence and consists of characteristics that influence behavior such as knowledge, beliefs, attitudes, and personality traits.[38] For the case of HIV criminalization, the individual level consists of attitudes such as internalized homophobia, biphobia, and HIV stigma and behaviors such as getting tested regularly for HIV and engaging in safe sexual practices. The individual level is influenced by the social networks provided at the interpersonal level. Social networks can serve as a site for peer-mediated homophobia, biphobia, and HIV stigma that can be internalized by some individuals.

 

 

Causal Pathways of Georgia’s HIV Criminal Law

Instead of addressing the social and structural factors that drive the HIV disparity for Black MSM in Atlanta, Georgia’s HIV criminal law has only exacerbated the HIV epidemic. As Figure 2 demonstrates, causal pathways link Georgia’s HIV criminal law to the higher incidence of HIV among Black MSM in Atlanta. One pathway is the disproportionate burden of HIV-related arrests and convictions faced by Black men.

Imprisoning Black MSM only amplifies the spread of HIV among this population, due to the links between race, incarceration, and HIV status. Black men are disproportionately incarcerated, with the imprisonment rate for Black men in 2010 being nearly seven times higher than that of White men. According to the Center for HIV Law and Policy, the rate of HIV among people in prison is five to seven times higher than that of the general population, and rates are the highest among Black male prisoners.[39] HIV transmission while incarcerated is extremely common, as the virus spreads rapidly through behaviors such as unprotected sex and needle sharing. Furthermore, people in American prisons generally receive substandard health care, exacerbating the lack of preventative care and treatment.[40]

Georgia’s HIV criminal law also leads to higher incidence of HIV among Black MSM in Atlanta because the law further stigmatizes HIV. Seeing HIV punished so blatantly, especially among MSM, strengthens the already common negative associations that the virus carries and can lead to internalized homophobia. More specifically, research has shown that HIV stigma leads to both increased feelings of loneliness and a decrease in condom usage with the most recent partner of an unknown HIV status.[41] As Black MSM in Atlanta decrease their condom usage as a result of HIV stigma and internalized homophobia, the chances of HIV transmission among their often relatively confined sexual network increase.

Increased HIV stigma also interrupts public health efforts and leads to Black MSM not getting tested regularly for the virus. Research has shown that Black MSM avoid HIV testing due to fears of stigma and discrimination.[42] Black MSM fear the negative implications of an HIV-positive diagnosis and may become too anxious about this possibility to get tested. Georgia’s HIV criminalization law adds the legal system to the list of people and institutions to fear. In order to avoid potential liability under the law for knowingly spreading the virus, individuals may choose to not get tested.

HIV stigma also leads to people being less likely to disclose their HIV-positive status to their sexual partners due to fear of being further stigmatized. A study among HIV-positive Black MSM revealed that greater internalized stigma surrounding HIV was associated with less HIV-status disclosure to participants’ last sexual partner and to family members.[43] Given the fact that Black MSM often have higher viral loads and have several barriers for accessing HIV prevention services, not disclosing one’s HIV status to a sexual partner carries a high risk for transmitting the virus.

Studies indicate that health literacy, among many other social and structural factors, is another roadblock to vulnerable populations accessing HIV prevention resources.[44] They suggest that Black MSM have a need for better awareness and education about the role of PrEP in HIV prevention and improved health literacy in order to understand the confusing and overwhelming medical jargon surrounding HIV.[45] This lack of literacy is also endemic among doctors, evidenced by the fact that one in three primary care doctors and nurses have never even heard of PrEP, an HIV-prevention medication.[46] The fact that even doctors have limited literacy regarding HIV prevention highlights the overwhelming barriers within the medical system that prevent Black MSM from accessing PrEP and learning about its role in HIV prevention.

Additionally, HIV stigma further compounds medical distrust among Black MSM. Research shows that Black MSM generally reported that the CDC and medical providers cannot be trusted to provide accurate information about PrEP.[47] Accordingly, medical distrust among Black MSM was associated with a lower interest in PrEP and antiretroviral therapy.[48] Without accessing such crucial HIV prevention and treatment services, there is little hope to contain and prevent further spread of HIV within the population.

 

Conclusion   

Georgia’s HIV criminal law has been in place for more than 20 years, and there have been increases in HIV rates among Black MSM in Atlanta.[49] The exacerbated spread of the virus demonstrates that this punitive approach to addressing the HIV epidemic is not effective, as demonstrated by the Social Ecological Model and causal pathway diagram. To properly address the epidemic, it is vital that Georgia repeal its HIV criminal law and invest in public health initiatives aimed at treatment and prevention, particularly among Black MSM in Atlanta. Such initiatives should include HIV community-education campaigns, anti-stigma campaigns, and changes to medical school curricula. These public health efforts are vital if there is any hope of treating HIV as the public health issue that it is.

 

Author Biography: 

Lamar Greene is a senior at Emory University and from Richmond, Virginia. A Gates Millennium scholar and Truman scholar, Lamar is majoring in human health. He is also pursuing a concentration in health innovation at the Goizueta Business School, which focuses on basic principles of business as they relate to health. Currently, Lamar is working on an independent research project analyzing racial disparities in maternal morbidity under the guidance of Emory epidemiologist, Dr. Carol Hogue. Lamar has dedicated his time at Emory to addressing health disparities across race and sexuality both on campus and in the broader Atlanta community. With the support of the Office of Health Promotion, he helped expand the reach of Emory’s PrEP clinic for HIV prevention and worked to educate clinicians around stigmas on sexuality and race. He also volunteers annually during the open-enrollment period to help some of Atlanta’s most vulnerable residents navigate their health insurance options. Lamar plans to pursue a public health career focused on community-based initiatives to promote health equity and address health disparities.

 

Photo by Ian Schneider on Unsplash

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[11] Charles B. Hicks, “Racial Disparities in HIV Prevalence Among MSM in Atlanta,” NEJM Journal Watch, 15 May 2017, https://www.jwatch.org/na44099/2017/05/15/racial-disparities-hiv-prevalence-among-msm-atlanta.

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[15] Carey and Milan, “The Whitewashed History of HIV: A Black Teen Died of AIDS in 1969.”

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[17] Santanna S. Comer, “Factors That Contribute to The Disproportionate Rates of HIV among Black Men Who Have Sex With Men (MSM): A Systematic Review” (capstone project, Georgia State University School of Public Health, 2017), 18, https://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1064&context=iph_capstone.

[18] Comer, “Factors That Contribute to The Disproportionate Rates of HIV among Black Men Who Have Sex With Men (MSM),” 18.

[19] Comer, “Factors That Contribute to The Disproportionate Rates of HIV among Black Men Who Have Sex With Men (MSM),” 18.

[20] “HIV and STD Criminal Laws,” Centers for Disease Control and Prevention, 23 May 2017, https://www.cdc.gov/hiv/policies/law/states/exposure.html.

[21] “HIV and STD Criminal Laws.”

[22] “HIV and STD Criminal Laws.”

[23] “HIV and STD Criminal Laws.”

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[25]  Hasenbush, HIV Criminalization in Georgia.

[26] “Georgia | State HIV Laws,” The Center for HIV Law and Policy, n.d., http://www.hivlawandpolicy.org/states/georgia.

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[28] Hasenbush, HIV Criminalization in Georgia.

[29] Hasenbush, HIV Criminalization in Georgia.

[30] Hasenbush, HIV Criminalization in Georgia.

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[37] “National Breast and Cervical Cancer Early Detection Program (NBCCEDP).”

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[40] “Prisons and Jails.”

[41] Randolph D. Hubach et al., “Loneliness, HIV-Related Stigma, and Condom Use Among a Predominantly Rural Sample of HIV-Positive Men Who Have Sex With Men (MSM),” AIDS Education and Prevention 27, no. 1 (2015): 72–83.

[42] Thomas Alex Washington et al., “From Their Voices: Barriers to HIV Testing among Black Men Who Have Sex with Men Remain,” Healthcare (Basel) 3, no. 4 (2015): 933–47.

[43] Nicole M. Overstreet et al., “Internalized stigma and HIV status disclosure among HIV-positive black men who have sex with men,” AIDS Care 25, no. 4 (2013): 466–71.

[44] Comer, “Factors That Contribute to The Disproportionate Rates of HIV among Black Men Who Have Sex With Men (MSM),” 18.

[45] Washington et al., “From Their Voices.”

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[47] Lisa A. Eaton et al., “Stigma and Conspiracy Beliefs Related to Pre-exposure Prophylaxis (PrEP) and Interest in Using PrEP Among Black and White Men and Transgender Women Who Have Sex with Men,” AIDS and Behavior 21 no. 5 (2017): 1236–46.

[48] Eaton et al., “Stigma and Conspiracy Beliefs Related to Pre-exposure Prophylaxis (PrEP)”; see also, Simona A. Iacob, Diana G. Iacob, and Gheorghita Jugulete, “Improving the Adherence to Antiretroviral Therapy, a Difficult but Essential Task for a Successful HIV Treatment—Clinical Points of View and Practical Considerations,” Frontiers in Pharmacology 8 (2017): 831.

[49] Comer, “Factors That Contribute to The Disproportionate Rates of HIV among Black Men Who Have Sex With Men (MSM),” 41.

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