Conclusion

Legal and ethical commentators have suggested that laws which place a greater burden of the responsibility of HIV prevention on the diagnosed HIV-positive individual may be unfair and one-sided.^1,2,3,4 Legal academic Matthew Weait, referring to the role of the HIV-negative sexual partner, says, “[T]he law ignores my risk-taking, my irresponsibility and legitimates my gullibility.”⁵

Legal ethicists Bennett, Draper and Frith believe that everyone has a general duty not to assume their partner is HIV-negative. “In many cases of HIV transmission, at least via consensual acts,” they note, “it seems probable that the responsibility for any resulting harm is, in some sense, held jointly by both partners.”⁶

Since the vast majority of people living with HIV in the world have not been tested and are unaware of their status,⁷ and most cases of sexual HIV transmission take place during sex between two consenting adults, neither of whom is aware that one them is living with HIV,⁸ it has been suggested that people who have been tested and know that they are HIV-positive are, in fact, being more 'responsible' than those who have not been tested and make assumptions about their status.⁹

In fact, laws in a handful of jurisdictions criminalise HIV transmission by people who “ought to have known” their status, but did not. However, UNAIDS argues that to increase the scope of criminal liability beyond those with diagnosed HIV infection to those who think they may be infected, or to those that it is felt ought to know they are or may be HIV-positive casts the net of criminal law far too broadly, and is likely to open the door to stigmatised attitudes and prejudice against the marginalised individuals who are often considered at 'high risk' of HIV.¹⁰

In a broader analysis of whether the application of the criminal law to potential or actual HIV exposure or transmission produces ‘just outcomes’, it may be appropriate to consider both parties' responsibility to protect themselves during mutually consensual sex. Since both partners may make the identical mistake of assuming that a lack of disclosure means the other person has the same serostatus, there is a question of fairness to be asked if only the diagnosed HIV-positive partner is criminally liable. The discussion of responsibility might be further widened to consider an obligation upon HIV-negative people to try to understand why some HIV-positive people have difficulties disclosing their status.