Recent trends in high-income countries

Curiously, the advent of powerful new drugs with the potential to greatly extend the lives of people living with HIV does not seem to have reduced the appeal of the application of the criminal law to potential or actual HIV exposure or transmission in high-income countries.

In the first decade of the 21st century, many countries saw prosecutions for HIV exposure or transmission either begin (for example, Estonia, Poland, Singapore and the United Kingdom), or take place more frequently (for example, Australia and Canada, the latter of which had its first-ever conviction for murder subsequent to sexual transmission in 2009¹). Other high-income countries, including Denmark, Malta and Slovakia, have only recently enacted HIV-specific laws.

In these high-income settings, in which HIV epidemics disproportionately affect men who have sex with men, migrants and people who inject drugs, an inordinate number of heterosexual men have been prosecuted. In particular, migrant heterosexual men from countries where HIV is endemic,² and/or those with mental illness,³ seem particularly prone to prosecution.

Commentators^4,5,6 have suggested that this may be due to a variety of factors, including:

• Heterosexual populations may be less likely than gay men to know about or adopt the concept of mutual responsibility, as HIV-prevention information has been targeted to higher-risk sub-populations.

• Women generally have fewer sexual partners than either gay men or heterosexual men, so it may be easier to trace their sexual partner(s).

• Women may more readily identify as 'victims' than gay men.

• Individual and institutionalised cultural factors, including xenophobia, racism and homophobia may be at play.

• There may be a lack of capacity by the criminal justice system to recognise and deal effectively with mental health issues.