Introduction

Edwin J. Bernard
Published: 18 July 2010

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Lawyers have been debating the role criminal law should play in regulating the sexual behavior of people with HIV for twenty years, and for twenty years the debate has revolved around the same sort of story: two people meet, have sex and then one finds out the other has HIV. The sex was more or less safe. A condom may or may not have been used. There may have been an outright lie about infection, or just silence. Sometimes the person exposed is one of many. Sometimes he or she is not just exposed and scared but infected with the virus. On a few occasions, the person with HIV is the epicenter of a mini-epidemic.

The same story, and yet different. For some commentators, the moral is quite simple. Exposing others to a significant risk of infection with a lethal disease is indefensible conduct for one who knows of his or her infection, negligent at best and homicidal at worst. Prosecuting sexual wrong-doers under existing or HIV-specific criminal statutes appropriately punishes bad behavior and will deter others from endangering others in the future.

Other observers see a world of ambiguity: sex is a complex behavior, psychologically and morally; disclosure and safe sex are negotiated nonverbally and contextually; risks vary according to the behavior, and are often not as significant as they are portrayed in lurid news reports; a person who practices safe sex or disclosure most or even some of the time represents a public health success, not a worrisome failure. Commentators adopting this view have usually posited that criminal law will not deter people with HIV from having unsafe sex, and may do more harm than good by creating a false sense of security among the uninfected or interfering in public health efforts to reach out to people with and at high risk of infection. Indeed, given the potential harm criminalization could do, some commentators have argued that passing HIV-specific criminal exposure laws is unethical and a violation of human rights.

Scott Burris, Leo Beletsky, Joseph Burleson, Patricia Case and Zita Lazzarini.1

As Burris and colleagues explain in the introduction to the first published study to examine empirically whether or not the criminal law influences HIV-related risk behaviour, the debate regarding the wisdom and effectiveness of such an approach is primarily a moral and ethical one, with few data to back up either side. And yet, in order to make sound policy decisions about the use of the criminal law to address potential or actual HIV exposure or transmission, understanding the impact of such an approach is crucial.

This chapter attempts to address this issue by undertaking a thorough assessment of what is currently known about the impact of the use of the criminal law to address potential or actual HIV exposure or transmission – on individuals, communities and countries, as well as on the course of the global HIV epidemic.

A note about the evidence

Obtaining accurate and reliable data about the public health and/or human rights impact of the use of the criminal law to address potential or actual HIV exposure or transmission is challenging. Only a few studies, undertaken primarily in low-prevalence, high-income settings, have examined such an impact on public health issues. There are even fewer studies assessing the human rights impact.i Consequently, some of the evidence provided is necessarily anecdotal. It should also be noted that it is particularly difficult to discern how issues relating to the use of the criminal law on potential or actual HIV exposure or transmission are having an impact on the African continent where so many HIV-specific laws have recently been enacted, as well as other countries where information is not freely available.

Chapter contents include:

  • the positive impact on public health

  • the negative impact on public health

  • the human rights impact.

i. WHO Europe has undertaken a pilot human rights audit in five jurisdictions  – England and Wales, Hungary, the Netherlands, Sweden and Switzerland – with a view to expanding the audit throughout all members of the Council of Europe. The results of the pilot audit should be made available late in 2010.

References

  1. Burris S et al. Do criminal laws influence HIV risk behaviour? An empirical trial. Arizona State Law Journal 39: 467-517, 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.