How the criminal law approaches responsibility

Edwin J. Bernard
Published: 18 July 2010

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The criminal law's approach to the question of responsibility is one based on a model of subjectivity that will, and must, deny the specificity of individual human experience... one that will deny the relevance of particular individuals' attempts to behave responsibly (by practising safer sex rather than disclosing status, for example). To the extent that it does so, it undermines those attempts and ignores the very real impediments and barriers to behaving as the law demands.

Dr Matthew Weait, Birkbeck College, University of London, 2007.1

The criminal law's approach to responsibility for HIV prevention depends very much on the HIV-specific law (or interpretation of the general law) in each jurisdiction.

In some jurisdictions, the criminal law clearly obligates someone who knows their HIV-positive status to disclose this to their sexual partner(s) before any kind of sex takes place (and in others only before unprotected sex). Others make disclosure of known HIV-positive status an affirmative defence to allegations of potential or actual HIV exposure or transmission. In both cases, the issue at stake is not responsiblity for HIV prevention per se, but a duty to disclose a known HIV-positive status so that a sexual partner can make an informed decision about what – if any – HIV-related sexual risks they are prepared to take.

There are many variations regarding the legal responsibilities that people with HIV have in relation to potential or actual HIV exposure or transmission. See the chapter: Details for further information on individual jurisdictions and countries.

However, other jurisdictions do not consider disclosure of known HIV-positive status to be at issue. These jurisdictions criminalise unprotected sex by someone who knows they are HIV-positive, regardless of whether or not they have disclosed to their partner, and even if the partner consented to HIV-related sexual risk-taking. Disclosure of known HIV-positive status is not considered to be an affirmative defence during a prosecution for sex that potentially or actually risked HIV exposure. In effect, these jurisdictions are assigning responsibility for HIV prevention solely to the person who is diagnosed HIV-positive.

References

  1. Weait M Intimacy and Responsibility: the criminalisation of HIV transmission. Abingdon, Oxon: Routledge-Cavendish, 2007

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A writer and advocate on a range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV Treatment Update. To visit Edwin's blog and respond to posts click here.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.
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This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.