In short, yes. Increasingly, more and more states have begun to recognize the transmission of a sexually transmitted disease (“STD”) as a valid cause of action. In general, the criminal act of transmitting a STD occurs between an infected individual and a single sexual partner.
Importantly, the transmission of an STD, also known as a venereal disease, may result in both criminal and civil liability depending upon the jurisdiction’s law where the incident occurs and the specifics of the case.
Although different jurisdictions have different rules regarding what constitutes a criminal action for failing to inform a sexual partner of one’s STD status, most states have laws that criminalize the transmission of incurable STDs. For instance, STDs such as the Human Immunodeficiency Virus (“HIV”), Hepatitis B, or the Human Papillomavirus (“HPV”), are all incurable diseases that may lead to death.
Georgia is one such state that criminalizes both the transmission of HIV to a sexual partner and failure to inform a sexual partner of one’s HIV status. Specifically, the laws regarding failing to inform a sexual partner of HIV status can be found in Georgia Code § 24-12-21.
It is important to note that the law regarding HIV disclosure in Georgia changed as of May 2022. Previously, any person in Georgia living with HIV could receive a felony charge and up to 10 years in prison for not disclosing their HIV status prior to any type of sexual act.
Importantly, the degree of risk of HIV transmission was not a factor in the criminal statute, including circumstances where there was no HIV transmission, nor even any risk of HIV transmission. This means that if a person had a potential sexual partner, and they failed to disclose their HIV status, then they could face felony imprisonment.
As of May 2022, the revised Georgia law provides that a person living with HIV who knows their status, but fails to disclose it, only commits a felony and can receive criminal charges if they engage in a sexual act where there is “a significant risk based on scientifically supported levels of risk of transmission” and the person has “the specific intent to transmit the disease.”
As can be seen, there is now an additional criminal intent element in the crime of failing to inform a person of HIV status. Further, there must be an actual risk of transmission, whereas the old statute only required evidence of a positive status.
Is Failure to Inform a Crime in Georgia?
As mentioned above, failure to inform by a person living with HIV of their positive status to a sexual partner is still a crime. However, the law in Georgia has recently evolved to include an intent element, as well as a requirement of actual risk of transmission.
As such, persons in Georgia living with HIV may still be charged with a felony and serve up to five years in prison if they show intent to transmit HIV coupled with a “significant risk of transmission based on current scientifically supported levels of risk transmission.”
In addition to a patient informing sexual partners, physicians that determined a patient to be HIV positive may also inform sexual partners of a person living with HIV. In fact, the Georgia Code provides that when the patient of a physician has been determined to be infected with HIV and that patient’s physician reasonably believes that a sexual partner or other person is at risk of being infected with HIV by that patient, the physician may disclose to person that the patient has been determined to be infected with HIV.
Importantly, the physician must first attempt to notify the patient that such disclosure is going to be made. In making the disclosure, the physician may disclose the following to the County Department of Public Health:
- The name and address of the patient;
- That the patient has been determined to be infected with HIV; and
- The name and address of any other person whom the disclosing physician or administrator reasonably believes to be a person at risk of being infected with HIV by that patient.
Importantly, the Georgia Code does not criminalize physicians for a failure to inform, as that responsibility rests solely on the person living with HIV.
Are There Any Other Situations Where I Need to Disclose My Status?
Once again, in Georgia a person living with HIV must disclose their HIV status to sexual partners if there is a risk of transmission. This allows their sexual partner to make an informed decision about their health and safety, and take necessary precautions.
In addition to disclosure to sexual partners, persons living with HIV may also need to disclose their HIV status in the following scenarios:
- In any scenario involving sharing a needle, then disclosure of HIV status to other is vital, and failure to disclose could result in the transmission of HIV and possible criminal or civil penalties;
- When seeking medical care, persons living with HIV will need to share their status in order to ensure their physician provides them with appropriate treatment and take precautions to prevent accidental exposure;
- Pregnant individuals living with HIV should also disclose their status to their healthcare providers, in order to ensure proper medical management during pregnancy in order to reduce the risk of transmitting HIV to the baby;
- Individuals living with HIV that are breastfeeding should also disclose their status to their healthcare provider in order to receive guidance on safe practices to minimize the risk of transmission to their child; and/or
- Individuals living with HIV are generally not eligible to donate blood, and if they attempt to donate blood, they must always disclose their HIV status to prevent potential harm to blood recipients.
What Is the Punishment for Not Disclosing My HIV Status in Georgia?
Once again, the criminal penalty for not disclosing one’s HIV status in Georgie is a felony charge. Then, the individual may be convicted by the state prosecution if the prosecution can prove beyond a reasonable doubt that they had the intent to transmit their disease and they knew or should have known there was a risk for transmission. Criminal penalties then include up to 5 years in jail.
In addition to criminal penalties, an individual that fails to disclose their status may also be civilly sued. The most common legal theory upon which people that are injured by a person that fails to disclose their HIV status (i.e. “plaintiffs”) base their civil lawsuits on, is the theory of negligence.
In a negligence claim, a defendant can be held legally responsible for the plaintiff’s injury under a theory of negligence when their conduct falls below a standard of care. The primary factors in ascertaining whether a person’s conduct lacks reasonable care are:
- The foreseeable likelihood that the conduct will result in harm;
- The foreseeable severity of that harm; and
- The level of burden it would take to eliminate or reduce the risk of harm.
In the case of transmitting HIV, many courts have recognized the duty of sexual partners not to spread infection carelessly. As such, the failure to obtain diagnosis and treatment of HIV, the failure to prevent transmission of HIV through sexual abstention, the failure to use condoms, and the failure to properly inform have all been used to demonstrate a lack of due care.
The main aspect of a claim for the negligent transmission of a sexual disease is the requirement that the defendant knew, or should have known, that they had a contagious sexual disease before transmitting it to their partner.
Additionally, a person may also base their civil lawsuit on fraud or misrepresentation if the person misled the sexual partner to believe that they did not have HIV. Thus, a person who knowingly fails to disclose knowledge of their STDs to a sexual partner, may be held liable for any injuries sustained by the partner, including the cost of future medical treatment.
Do I Need an Attorney to Fight My Charge?
As can be seen, the liability for failing to inform a person of HIV status will be dependent on a variety of factors. As such, if you are being charged with failure to inform another person of your HIV status, you should immediately consult with an experienced Georgia criminal attorney. An experienced criminal defense attorney will be able to help you assert your best legal defenses, and represent you at any in person criminal proceeding.
Additionally, if you have contracted a sexually transmitted disease, you may also wish to consult with an experienced personal injury attorney. A personal injury attorney can both evaluate your case and inform you of your best legal options for holding the other party accountable for infecting you. This often means filing a private civil lawsuit against that party. Finally, an attorney can also represent your interests in court, as needed.
