Wilder: Malcolm, as a person living with HIV who’s part of the HIV community in Georgia, what is your perspective on these criminalizing laws that are out in your community? How does it impact you and other people living with HIV in Georgia?
Malcolm Reid: As a person living with HIV, it is important that I am heard, that we are heard. The impact can be devastating to a younger person who is looking to try to make their way in life. They are sexually active. They might know that they are living with HIV, and they are in care, taking their medicine, but there is still that stigma that every time you say, “I’m living with HIV,” nobody might want to be bothered with you. There is that stigma that says, “I just found out that I’m living with HIV. I’ve done all the right things, but it’s still hard for me to speak about it.”
Stigma plays a huge role in our daily lives. And for laws like this to be on the books that say that I’m a criminal just for not telling everybody that I’m living with HIV … and if you are in the LGBTQ community—if you’re in any community—people talk. So, you don’t necessarily want to just tell everybody that you meet, everybody that you may encounter, that you may have sex with, that “I’m living with HIV,” especially if you know that you are unable to spread HIV because you are in care. Then why is it criminalized? Why can I go to jail when I’m doing what I need to do to protect myself and to protect other people?
For the people who are not in care, who are still coming to grips with living with HIV, who may have been diagnosed but have not gotten to that point where they can walk into a clinic and say, “I need to start taking medicine”—I do remember when I first had an inkling that I was living with HIV. It took me quite a while to get in care. I know that there are a lot of people out there that are living in that space, that they’ve been diagnosed, or they might have a suspicion that they’re living with HIV, but they can’t get there. That is not a fault of theirs. That is a human fault. That is a natural fault. People are telling you, “This disease can kill you.” Everybody has that window of time that they can’t come to grips with it and they can’t voice it. But at the same time, they’re living their life.
So, it is just very important that we make sure that laws around HIV are treated like any other laws dealing with sexually transmitted diseases. It should not be the only law where you can go to jail for 10 years just because you didn’t tell somebody.
A Bill to Protect People Living With HIV
Wilder: Let’s talk about Senate Bill 164. Correct me if I’m wrong: It unanimously passed the [House, then passed the] Senate, 50-2, but then, at the last minute, it sounds like politics ultimately killed the bill when the House Rules Committee added substituted language very late in the day that the bill sponsor didn’t approve of. Is that what’s happening right now?
Paulk: That is absolutely correct. What the bill does is, it really brings the Georgia laws into alignment with where we are in 2021. Senate Bill 164 removes a number of provisions that advocates see [the removal of] as necessary for the protection of people who are living with HIV. It removes provisions around sharing needles. It removes provisions around solicitation. It also removes provisions around donating blood and organs.
Then, in Georgia’s law, there is a Section D that is made up of penalty enhancements. It removes penalty enhancements around spitting on peace officers, and then enhancements around spitting on correctional officers. That provision also includes other modes like urine or feces, that we know have zero chance of transmission. Those are some of the provisions that the bill gets rid of.
Some things that the bill adds that are really critical are, one, a mens rea. I talked a little bit before about how the law doesn’t have any element of intent. A person living with HIV has to be essentially seeking to transmit HIV to another person. It also adds language stating that sexual acts must have significant risk based on scientifically supported levels of risk of transmission. This allows for folks to be able to mount a defense, and to be able to talk about the fact that they may have a[n undetectable] viral load or that condoms were used during the sex act. All those things become really important. Like, oral sex is something that is now included in the law—again, not really a mode of transmission.
The bill also adds people-first language, which was really important for communities of people who are living with HIV, that we are reducing stigma and that we’re getting rid of some of the stigmatizing language that was in the bill. It also creates a provision for the protection of victims of sexual assault. One of the places where we’re not able to get the reform in the bill that we were looking for is around charging. The penalty would still be a felony, a reduced felony from 10 years (and what is our law right now) to five years. What advocates have wanted was for this to be a misdemeanor. That was one area that, as we think about advocacy for the 2022 legislative session, is a place that we will go and will advocate around.
We’re also hoping that we will be able to have an amendment around adding that transmission will be required. We want to make the law as airtight as possible to make sure that we’re protecting as many folks who are living with HIV as possible.
Reid: That intent was very important to me, working with Eric and the Georgia HIV Justice Coalition. That was something that was really important to me because—as I mentioned earlier in that example of a person that’s just out there living their life and is not out there trying to hurt people—it’s important to be able to say, “Yeah, I had sex with this person. I didn’t feel comfortable disclosing. But I wasn’t just out there having sex, knowing that I have HIV, trying to pass HIV or give HIV to other people.”
We’ve heard those horror stories which, in themselves, are stigmatizing because it casts a bad light on everybody that is living with HIV and says that we’re out there performing predatory acts. We have to protect people against that type of thought that everybody living with HIV is out there to pass it on to everybody else—because that’s a conspiracy theory.
Paulk: I just thought I’d add one more thing here. Sorry. Just to also be clear that for folks who are seeking to intentionally transmit HIV to other folks, there are ways that folks can be criminalized under the general law. We don’t need HIV criminal laws in order to protect folks against those folks who may be seeking to intentionally transmit.
Living With HIV, Not HIV-Infected
Wilder: There’s a line in the bill which seems to call out referring to people with HIV, using that language, “people with HIV,” in the bill versus referring to them as “HIV-infected persons.” And to me, this is an obvious shout-out to the Denver Principles.
Why was it important to change the language in the bill from “HIV-infected person” to “people with HIV?”
Reid: People-first language is extremely important. As we mentioned, stigma is such a huge barrier to getting people into care, and to keeping people in care. As a Black man, a member of the LGBTQ community, and a person living with HIV, the intersectionality of the stigma that I have lived with most of my life, or since coming of age, has been a burden. I have been blessed to have people around me that have supported me, and so I can be who I am today, sitting on this interview and acknowledging that I’m a person living with HIV. But everybody doesn’t have that.
It is very important that when we are writing a bill to protect people living with HIV that we make sure that we honor them and address them in a way that casts aside as much as we possibly can that stigma. As they say in the Denver Principles, we are not “infected.” We are people living with. I always told people, before I even knew about the Denver Principles, “I am living with HIV. HIV does not live with me.” And to me, that is a turning point. Because HIV doesn’t control me. I have a disease, just like anybody else. Right now, as a 63-year-old man, I also have arthritis and I also have diabetes. I want to be able to put living with HIV in that same pocket, if you will. I want to be able to say, you know, in the morning, I get up, I take my diabetes medicine, I take my HIV medicine, and I take my arthritis medicine. I take them all at the same time because I think about them all the same way.
I do know that there are people out there, as I mentioned, that don’t look at it that way. They can’t look at it that way because of the stigma that has been brought to bear on us as people living with HIV. So, yeah, people-first language is extremely important. And to have it written into a bill that hopefully someday will be codified into law makes it even more important.
Wilder: How did you all get a Republican senator to be the lead on this Senate bill? I was a little surprised. Were you?
Paulk: The coalition was started back in 2013. And I think even back in 2013, folks understood what the political realities of doing work and getting legislation passed in Georgia looks like. It means that you have to have strong bipartisan support in order for a bill to get passed. I think the work of the coalition has always been to work up to this moment, where we were able to get more conservative-leaning folks to see this as an important issue.
One of the important steps getting to this place was a Study Committee that happened, I believe, back in 2017. It was a Study Committee that was convened on barriers to accessing adequate health care. HIV was one of the areas that they reviewed. And HIV criminal justice reform was also a part of that. Sharon Cooper, who is the chair of the Health and Human Services Committee, also a Republican legislator, was in charge of this committee.
What the findings from the committee were in 2017 really acknowledged that a lot of the parts of our HIV statute just didn’t make sense. It didn’t make sense to have a provision in there that talks about modes of transmission where we know there’s zero chance of transmission.
I think it has really been this sort of slowly chipping away over time that people are really beginning to understand the importance of reforming these laws, understanding that they are out of date, and that they don’t do what they’re intended to do, which is reduce HIV transmissions in the state. We can go to AIDSVu now and see that that’s probably not the case, and not happening.
I think what this has been is just over time, people have been able to understand and acknowledge that this is bad public policy, it is a bad public health strategy, and that these are laws that need to be reformed. And so, as you mentioned earlier, Terri, we were able to pass this out of the House unanimously. I think there were only two nays on the Senate side. And so, not very consensus at all. We’re hoping that in 2022 we’ll actually get it across the line.
Getting the Message Across
Wilder: Other states are modernizing their HIV criminalization laws: Virginia just did. Is modernizing them enough versus just completely getting rid of them?
Paulk: There’s been a whole lot of conversation around whether to look for modernizing or reforming the laws, or if we look to get rid of them completely. And a lot of thought, in particular, with our coalition was, we looked at Texas, right? That completely got rid of their HIV-specific law. What you saw was that you were still seeing folks who were being criminalized under the general law. And people were being charged with things like attempted murder.
In a way, our thought was that reform may be a more practical way for us to approach this because we’re able to put more guardrails around what and how people are able to be charged and put enough protections in place where we’re really minimizing and making it difficult for someone to be prosecuted under the law. What we were trying to avoid was folks being prosecuted under manslaughter or attempted murder, or some of these other things that we’ve kind of seen happen in other states.
Wilder: What are the consequences of something like this remaining a felony? Even if it’s modernized, but if it’s still about some kind of incarceration because of a felony, what impact does that have on a person with HIV in Georgia?
Reid: I think that that’s one of the reasons why we worked so hard. After we realized that getting it down to a misdemeanor probably was not going to happen this year, in one of the meetings, I said, “What is the sugar that makes the bill sweet?” The only way to make this bill sweet was to make it as hard as possible for a person living with HIV to be convicted under the law. The proof of intent, the proof of transmission—those are things that we want in the bill even if it is a felony—and believe me, we had long discussions about whether to accept the felony or not, or whether to move forward.
We had a strategy that if the bill passed and it was still a felony, what we were going to do. We don’t want it to be a felony any more than anybody else does. But we knew what we were fighting for. And as they say, the ship of state moves very slow. You take things gradually. You take things as you can. I think we realized we’re not going to get the felony out of here right away. If we get this bill across the finish line—and when you think about it, we came so close. The bill did not fail because of what was in our bill, the bill failed because somebody else put something else in there. So, when you think about that, it’s like we now know that a bill of this nature, a quote-unquote, modernized bill, is palatable and is something that can pass.
We can focus our attention on the felony going forward. But as a person living with HIV, I was able to take some solace in the fact that, yeah, it’s still a felony. But you know what? It’s going to be hard for you to prove. That’s where we are. It’s not everything that we want, but it was something.
Paulk: I’ll just piggyback on that a little bit and add: Look, we acknowledge that in Georgia the folks who are most criminalized under these laws are Black communities. We recognize that Black communities are more likely to have interactions with the criminal justice system. Once they do, we are going to have a higher likelihood of longer convictions.
We acknowledge all of those things and take those things very seriously, the fact that a felony follows you and has ramifications on all the things—employment, housing—and this was really important for us to, like Malcolm said, make it as difficult as possible for someone to be convicted under these laws.
The other piece of that is that our advocacy and our work doesn’t end with us passing a piece of legislation. Even if we were able to get the ideal legislation, all the things that we want to have in an ideal bill, we would still need to continue to work and advocate and be in communities to talk about stigma, to do education with folks. So the work doesn’t end for us with passing a piece of legislation. It’s only a step in the process, securing rights for folks who are living with HIV and making sure that we are supporting and protecting them the best way that we can.
Wilder: What was the language that got added very late that ultimately killed the bill?
Paulk: It was completely unrelated to HIV, unrelated to any of the work that we were doing. It was something about Schedule 1 drugs. It was a piece of legislation that had made it through the process. They were looking for a bill that was moving fast, that would probably get across the finish line, to be attached to, to get it passed.
Wilder: As you move forward and look to the future, at the end of the day, what are the top things that the legislation needs to do? And what are things that activists in Georgia can do from today until the next session to get it focused so that it can implement the change that everybody wants?
Reid: I’ll jump in first. We’ve been advocating and talking to our state representatives, but we still have a public relations component that we have to deal with. Because people who don’t follow this like we have been are not aware of, number one, what we’re doing, and number two, I can’t say absolutely positively that every person living with HIV or every person that may encounter or have sex with somebody that might be living with HIV understands the stigma aspects of the criminalization.
I just believe that anecdotally, if you said to someone, “If you had sex with somebody that’s living with HIV and they didn’t tell you, what do you think?” I think the answer would be that the person would say that they should go to jail.
We know that we have a public relations fight on our hands. We have to climb that hill, as well. If we approach it from that aspect, continue meeting with our representatives at the Capitol and working with DAs and those folks and making sure that things aren’t prosecuted, but also making sure that the people that we are trying to protect and the rest of the community are aware of what these bills actually do—not what they say they’re going to do, but what they actually do—how they stop people from getting tested and they’re just bad public health policy.
We have to get that message across. And once we get that message across, we can hopefully get those people to join us in contacting their legislators and their state senators and helping us to get that message up to the Capitol.
Paulk: The thing that I would add to that is, in terms of steps forward: one is amending the bill—getting the charging from felony to a misdemeanor, and one is if we can add some language about transmission being required. So those are two amendments that we’d like to see in the bill.
Then, I think in terms of what we can do, we can do a better job of making sure that we’re sort of broadening the net of folks who are interested in and work on this issue. The framework around HIV criminalization has always sort of been couched in this framework around behaviors and that sort of thing. The framework should really be more about how systems impact folks. I also think that this is an issue area that’s going to live almost exclusively in the LGBTQ space. This is a criminal justice issue. How do we get folks who are working on broad criminal justice reform to be a part of this movement space, to talk about how we reform the laws here? How do we get folks who are involved in the broader racial justice space to see this as a racial justice issue, and add their voices to this as an issue that’s impacting Black communities?
A lot of our work over the next several months is broadening and strengthening our coalition and really focusing on tightening up the aspects of the bill that we’d like to see changed.
Wilder: If people want to get involved right now, how will they do that? How can they become part of this group of activists working together?
Paulk: They can check out our Georgia HIV Justice Coalition page and sign up for information there. We meet every month to talk about our strategy around legislation, but also the greater and broader strategy around bringing on additional folks, the work that has to happen once we are able to get this passed. The community education and the stigma reduction piece, which is also super-vital to this work.