Is there any legitimacy in criminalizing HIV?

Matthew Weait, Professor of Law and Policy and Pro-Vice-Master for Academic Partnerships, Birkbeck College, University of London

Criminal law is the most powerful mechanism a society has for expressing collective disapproval of a person’s conduct and typically results in the imposition of punishment – whether that be a monetary penalty or imprisonment.

Criminal law serves a social purpose: it is not, nor should be, a means of achieving private vengeance. For criminalization to be legitimate there must be a public interest at stake, not just the interest of the individual concerned.

When considering the justification for criminalizing HIV transmission, it is therefore important to think carefully about precisely what the public interest in prosecution is. Some might argue that this is self-evident: society has a right to be protected against those who would use others to their own ends, for selfish gratification, and who harm them in doing so. But – and it is a big but – we need to acknowledge that the criminalization of HIV transmission may have adverse public consequences, especially for public health. Take a few examples:

• If people knowingly living with HIV infection fear that they may have passed it to someone else, they may be less likely to advise that person to seek Post-Exposure Prophylaxis (PEP) for fear that in doing so they are confessing to the commission of an offence.

• Those who are HIV-positive but do not know for certain, or people who believe they might be, may be less willing to discover their status for fear that this knowledge could be used against them.

• Condoms are not 100% effective. Where criminal liability may be imposed merely for exposing someone to the risk of transmission, some people living with HIV (even if only a very small minority) may take the view that there is no point taking precautions. In the absence of a defence for appropriate condom use, such a criminal law provides no incentive to minimize onward transmission risk.

All of these possible consequences can only serve to increase onward transmission, and as such brings into question the efficacy of criminalization as a publicly justifiable response.

A practical reason for questioning the criminalization of HIV transmission is the difficulty of proof. The science (phylogenetic analysis) simply is not good enough to determine the source, route or timing of transmission. Even where the defendant and victim have the same HIV sub-type it is impossible, in the absence of other compelling evidence, to be sure that the defendant is guilty as charged. There has been a number of cases in which people have pleaded guilty having been confronted with such scientific evidence and there can be no certainty that they were rightly convicted. The potential for miscarriages of justice is great.

When considering whether it is legitimate to criminalize HIV transmission and exposure it is critical that whatever our moral views are we acknowledge the wider – and in my opinion dangerous – consequences of doing so.

Find out more

Read: Intimacy and Responsibility: the Criminalization of HIV Transmission Weait, Matthew (2007) (Abingdon: Routledge-Cavendish)

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