Stigma Index

The legitimacy of criminalising HIV transmission?

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.

The fact that a person may be deprived of their liberty for committing a crime has a number of consequences. First, the burden of proof (the standard to which the prosecution must satisfy the court that the defendant did in fact commit the offence) is high - usually ‘beyond reasonable doubt', or something equivalent. Second, the benefit of any doubt must be given to the defendant; and, third, in most cases, it will be necessary for the prosecution to prove that the defendant engaged in the prohibited conduct or caused the proscribed consequence with the requisite degree of fault, either through intention, recklessness or (more rarely) negligence. Finally, it is important to recognise that the justifiable criminalization of a form of behaviour generally implies that such behaviour is of a kind that attracts general moral disgrace, and that the interest of the victim is sufficiently important for its violation to warrant public censure.

These pre-conditions for criminalization would at first glance suggest that punishing those who transmit HIV or who expose them to the risk of transmission is, in principle, morally and legally justifiable. Also, there are no practical obstacles in doing so. It is not hard to conceptualise HIV infection as such a grave harm that transmitting it to someone else, or taking the risk of transmission, justifies punishment; and it is not hard to argue that people who know their HIV positive status are doing something morally wrong if they engage in such conduct. There are, however, some very strong principled and practical reasons why these immediately straightforward justifications should be subjected to close and careful scrutiny.

First, as a general point, there is no necessary link between morally offensive conduct and its criminalization. Many if not most people think that lying is morally wrong - but lying is not, in and of itself, a criminal offence. The same is true, in most jurisdictions, of adultery. Second, even where conduct which is seen as morally wrong attracts liability, it is important to recognize that for criminalization to be legitimate there must be a public interest at stake, not just the interest of the individual concerned. Criminal law serves a social purpose: it is not, nor should be, a means of achieving private vengeance.

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 infected someone, 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 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 minimise 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 third, 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 are infected with 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 have 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, I suggest, that whatever our moral views are we acknowledge the wider - and in my opinion dangerous - consequences of doing so.

Dr Matthew Weait is a Senior Lecturer in Law and Legal Studies, Birkbeck College, University of London

For further discussion of the views expressed here see Weait, Matthew ‘Intimacy and Responsibility: the Criminalization of HIV Transmission' (Abingdon: Routledge-Cavendish, 2007).