Conclusion

HIV can be life-threatening and, even under the best of circumstances with current medical interventions, results in an incurable illness that warrants ongoing medical management. This often involves treatment with a complex range of drugs requiring daily adherence and the potential for short- and long-term side effects. While HIV is certainly no longer the proverbial ‘death sentence’ for people with access to antiretroviral treatment, it could in a sense be considered a ‘life sentence’: even the healthiest HIV-positive person who understands the implications of the diagnosis is aware that the virus will always be a part of his or her future.

But the potential actual harm of HIV is not the only reason that the criminal justice system has focused on this particular communicable disease above all others. Another important reason is the stigma attached to the virus. HIV may have been singled out as a communicable harm that warrants the exceptional attention of the criminal justice system – above and beyond what rational science knows about the virus – due to HIV-related stigma.

Justice Edwin Cameron argues that the appropriate response is to move towards the 'normalisation' of HIV within the criminal justice system: "[W]e must keep in mind that the struggle for rationality in the epidemic has always been to secure equivalent treatment for those with and at risk of HIV. If we do so, our task becomes clearer. In this context 'normalisation' of HIV embraces on the one hand the application of ordinary rules of criminal law to conduct that by any reckoning deserves prosecution; but on the other, equally, resistance to exceptional prosecutions and enactments targeting HIV status alone."¹

Concepts of 'harm' may differ between jurisdictions. However, those who create and uphold the criminal law have an obligation to be accurate and up to date about the facts related to HIV before they decide what exactly is harmful about HIV exposure or transmission. Lawmakers and judges alike have a duty to consider and reconsider whether any of the aspects of HIV-related harm that come before them are, in fact, serious enough to warrant prosecution, conviction and/or enhanced sentencing.