15 Dec A Comparative Analysis of Mississippi’s HIV Criminalization Laws: Learning from Georgia and Kentucky

Posted at December 15, 2023 in Blog, In the News by

A Message from Linda Dixon, Director of Health Law

In Mississippi, the lives of those living with HIV are significantly, and negatively impacted by laws that criminalize actions taken by people living with HIV, simply because they have HIV. Unfortunately, Mississippi is not alone in having these outdated and unjust laws. But many states throughout the country, including those also in the South, are working to reform and modernize these laws so that they better reflect current science, and public health and criminal justice goals. 

These laws typically revolve around criminalizing behaviors that were at one point believed to expose others to HIV, such as non-disclosure of one’s HIV-positive status or engaging in activities with perceived transmission risks. Mississippi’s HIV-specific laws are among the strictest in the nation. They not only criminalize the intentional transmission of HIV, as well as reckless exposure to the virus, but people living with HIV in Mississippi can face prosecution under general criminal laws if they engage in sexual activity without disclosing their status, even if there is negligible or no risk of transmission. Modern medical interventions can bring viral loads to non-transmissible rates, and other methods of transmission that were once thought possible have simply been proven untrue in the intervening decades. For instance, to date, no documented cases of HIV transmission through saliva have been reported in Mississippi. Additionally, there are medications now available to help prevent contracting the virus in the first place. 

Given Mississippi’s struggle with elevated HIV rates, it becomes crucial to scrutinize the state’s approach to HIV criminalization and the impact they are having on the lives of Mississippians. The existing laws in Mississippi are not only outdated but relatively stringent, and critics argue that these laws might contribute to stigma and discourage individuals from getting tested, ultimately impeding public health initiatives.

Achievement Narratives

While some states continue to struggle with the balance between public health and criminalization, others have made significant strides in modernizing their approach to HIV-related laws. Georgia and Kentucky serve as notable, recent examples and shed light on potential avenues for improvement in Mississippi. Georgia, for instance, has moved towards decriminalization, focusing on public health approaches rather than punitive measures. Kentucky has also seen positive changes, aligning their laws with current scientific understanding of HIV transmission. 

Georgia

In 2022, the Georgia legislature took steps to modernize Georgia’s laws drawing almost unanimous support in both chambers. Some changes included:

  • Prior to the changes a person living with HIV in Georgia could face a felony and up to 10- years in prison for not disclosing their HIV status prior to any sexual act. The revised law now takes into account the intent of the person living with HIV and whether they are receiving medical intervention. Now a felony is committed only if the person living with HIV engages in a sexual act where there is “a significant risk based on scientifically supported levels of risk of transmission” and they intend to transmit the disease. 
  • The modernized law now protects victims of sexual assault no longer allowing a victim of sexual assault to have their HIV+ status weaponized against them by criminalizing the victim. 
  • These changes were framed as part of an “Ending The Epidemic Initiative”. The coalition actively engaged with elected officials, highlighting the public health implications of criminalization rather than focusing solely on individual stigma. 

Kentucky

In Kentucky, legal reforms have positively influenced public health outcomes:

  • House Bill 349, a recent success, removed the Class D felony penalty for organ donation by individuals living with HIV. The bill also endorsed expedited partner therapy for various sexually transmitted infections and allowed for the sale, delivery, and use of HIV self-testing kits.
  • The Fairness Campaign in Kentucky collaborated with local groups, incorporating questions about HIV modernization efforts into a statewide poll. During the legislative cycle, they engaged with high-crime counties, emphasizing the importance of aligning prosecutions with current scientific knowledge.

As Mississippi grapples with these unjust and outdated HIV criminalization laws, there is an opportunity to learn from states that have successfully shifted towards more modern and public health-focused approaches. By reevaluating and potentially revising existing legislation, Mississippi has the potential to create a legal environment that promotes public health best-practices, reduces stigma, and encourages individuals to seek testing and treatment. In doing so, the state can contribute to a broader national movement towards more informed and compassionate HIV policies and ultimately eradicating HIV.