In this Gerogia Health News commentary, CHLP Interim Staff Attorney Marguerite Schauer talks about recent legislation proposed in Georgia that would have softened the HIV criminal law, but that didn't go far enough in providing meaningful changes for people living with HIV, hepatitis and other infectious diseases.
"Georgia must do better in 2021, and the bill’s sponsors should rethink an approach that leaves felony penalties in place for HIV exposure without proof of disclosing status. But before the General Assembly meets next year, the state’s larger response to viral hepatitis and other infectious diseases must improve, alongside the continuing struggle against COVID-19."
Commentary: August 3, 2020
By Marguerite Schauer
COVID-19 has prompted a search for lessons learned from past pandemics. Many writers have examined the well-known 1918 flu pandemic and even the plague outbreaks of the Middle Ages, while others have shared thoughtful insights from the early years of HIV. Far less has been said regarding another deadly epidemic that is still going on: viral hepatitis.
Unlike COVID-19, which is transmitted casually and is understood to be indiscriminate, viral hepatitis is seen mostly as affecting a marginalized group — people who inject drugs. Like people living with HIV, those with viral hepatitis must contend not only with the disease but also with assumptions about how they contracted it. And just as many leaders ignored HIV for far too long, the inadequate response to skyrocketing rates of viral hepatitis over the past decade has cost lives.
Many of the more than 18,000 annual U.S. deaths stemming from the hepatitis C virus (HCV) could be prevented by early treatment. But due to restrictions by Medicaid and private insurance, treatment is often accessible only after a patient has sustained severe liver damage. Perhaps it’s easier to marginalize those whose illness is presumed to be the product of misbehavior.
While the public health response to HCV has been inadequate, the criminal justice response has been excessive. Georgia is one of 12 states that criminalize exposing others to viral hepatitis. In addition to increasing the stigma surrounding the disease and adding barriers to treatment, laws like Georgia’s fail to acknowledge that information on safer drug use is lacking, that tools for safer use are widely unavailable, and that HCV testing and treatment would greatly reduce the risk of further transmission.
Before the COVID-19 lockdown, the Georgia House passed HB 719, a bill to soften Georgia’s criminal HIV laws. But after the Legislature reconvened, the Senate failed to pass the legislation before adjournment, so the bill is dead for this year. The bill that made it through the House was far from perfect. It was HIV-specific, retained felony penalties, and hinged liability in part on the ability to prove disclosure to a sexual partner. But at least it would have eliminated the provision that makes it a felony to expose a law officer to HIV or hepatitis through bodily fluids. Much of the conduct targeted by that provision — such as spitting — poses virtually no risk of transmitting disease.
Georgia must do better in 2021, and the bill’s sponsors should rethink an approach that leaves felony penalties in place for HIV exposure without proof of disclosing status. But before the General Assembly meets next year, the state’s larger response to viral hepatitis and other infectious diseases must improve, alongside the continuing struggle against COVID-19.
In many ways, those living with HCV in Georgia face the same problems that have hampered our ability to bend the COVID-19 curve: limited testing capacity, insufficient personal protective equipment (PPE), and biased information from leaders. Testing is so limited that over half of HCV cases are undiagnosed. Providing access to clean syringes — the equivalent of PPE when it comes to simple tools to prevent HCV transmission — remains controversial in many quarters, and syringe possession is criminalized. Objective, non-judgmental information on safer drug use remains taboo.
Both COVID-19 and HCV reveal that health disparities in this country are widespread, entrenched and multifaceted. COVID-19 has killed people of color at much higher rates than whites, while HCV affects Native Americans at by far the highest rate of any group. The reasons for racial disparities are complex and continue to be studied, but all point back to structural inequalities. These inequalities are magnified in settings where people are confined, and incarcerated individuals have borne the heaviest burdens from the spread of COVID-19 as well as viral hepatitis. HCV affects one in three inmates, with fewer than 1 percent of those inmates receiving treatment.
As we seek effective solutions to the spread of COVID-19, we must learn from the deficiencies the pandemic has illuminated. We have seen that limited testing and insufficient prevention tools greatly contribute to the spread of disease, that biased messaging creates harm, and that racism taints the health care system. We have also seen how underfunded health care in correctional systems worsens health crises and how the criminalization of disease is the last thing that’s going to help. Rather than allowing bias or short-sightedness to govern the response to COVID-19, viral hepatitis, HIV, or any infectious disease, we must demand evidence-based policies, services and tools that reduce harm and improve outcomes.
The Center for HIV Law and Policy has joined with the National Viral Hepatitis Roundtable and the Harm Reduction Coalition to advocate for better viral hepatitis policy. For more information, go to www.hivlawandpolicy.org/viralhepatitis, and to get involved, contact email@example.com.
Marguerite Schauer is an interim staff attorney at the Center for HIV Law & Policy, where she supports nationwide efforts to end the criminalization of HIV and other infectious diseases through the Positive Justice Project. She is a former public defense attorney.