The deterrence rationale of using the
criminal law to address potential or actual HIV exposure or transmission is
that it serves public health by preventing individuals from engaging in behaviour that may put
others at risk of infection either through the fear of punishment (should their
behaviour be detected) and/or through sending a message that engaging in such
behaviour is morally wrong.11
For example, the
Supreme Court of Canada noted in the Cuerrier decision (which ruled that
non-disclosure of known HIV-positive status prior to sex that risked HIV
exposure was an assault): "If ever there was a place for the deterrence
provided by criminal sanctions it is present in these circumstances. It may
well have the desired effect of ensuring that there is disclosure of the risk
and that appropriate precautions are taken."12
However, even if people living with HIV are aware of the
existence of laws that may require disclosure of HIV-positive status prior to
behaviour that may risk exposing their partner to HIV, they may not necessarily
understand which specific behaviours violate those laws. There is likely to be less
clarity in jurisdictions where existing, rather than HIV-specific, laws are
used to prosecute HIV exposure and transmission since – in the absence of
investigator and prosecutor guidelines – the exact behaviours allowable and
punishable are often ambiguous.13
Recent studies from Canada, England
and Wales, and the United States
have explored the effectiveness of criminal laws as a deterrent to behaviours
that may result in HIV exposure or transmission. The studies from Canada and England
and Wales
only included men who were already engaging in HIV-related sexual risk-taking
and therefore cannot include data regarding the deterrent effect of the
criminal law on men who may have already been deterred from engaging in such
behaviour.
In Canada,
Adam and colleagues undertook qualitative research with 34 gay men (24 of whom
were diagnosed HIV-positive) who admitted to regularly engaging in unprotected
anal intercourse.14
The study found that five of the diagnosed HIV-positive men supported the Supreme Court of Canada's ruling
on the requirement to disclose prior to sex that
may risk HIV exposure. However, some men who neither disclosed nor practised
safer sex resisted the ruling's implication that people with an HIV diagnosis
should be more responsible for the avoidance of HIV exposure or transmission
than their sexual partners. Despite the concern of some men that they could face
criminal liability for their actions, they described the difficulty of
sustaining HIV disclosure and/or practising safer sex in all sexual settings.
In England
and Wales,
Dodds and colleagues undertook qualitative research with 42 HIV-positive gay men
who admitted to previously engaging in unprotected anal intercourse with high
numbers of sexual partners.15,4 The study took
place in 2008, five years after the first prosecution for HIV transmission
under an existing assault law. However, only a third of the men fully
understood how those laws applied to HIV transmission. The majority were
confused regarding their duties under the law, with many believing that it
actually legitimated behaviours that risk HIV exposure. The possibility of prosecution appeared to
lead some men to explicitly disclose their HIV status more often or to take
other measures to reduce the risk of HIV exposure. For other men, however the
possibility of prosecution was an incentive to remain anonymous to sexual
partners and/or to not explicitly disclose their status.
In the United States, Burris and colleagues examined the
effect of criminal law on the behaviour of just under 500 sexually active
individuals living in two American states (one with HIV-specific
disclosure/exposure laws, and one without), of whom one-third were diagnosed
HIV-positive. The study tested the hypothesis that there would be no difference
in self-reported sexual-risk behaviour between people who lived in a state that
requires HIV-positive people to disclose their HIV status and/or practise safer
sex and those who do not. It found that disclosure and sexual behaviour were
not influenced by either state of residence or knowledge of the law and
concluded that the criminal law does not appear to make people with HIV change
their behaviour, primarily because they already believed that HIV-status
disclosure and safer sex were morally and ethically correct.10
Galletly and
colleagues interviewed 384 people with HIV in Michigan where an HIV-specific law requires
disclosure of known HIV-positive status prior to any kind of sexual contact,
including mutual masturbation and the use of sex toys.16 In this state, information about this law
has been provided as a routine part of post-testing counselling since its 1989
enactment. The researchers found a high awareness of the law, and although most
of the participants who were aware of the law understood the obligation that it
placed on them, 70% underestimated the maximum prison
sentence for not disclosing one’s HIV status.
Although there was a trend towards an awareness of the law increasing
disclosure of HIV-positive status prior to sex, knowledge of the law did not
appear to have an impact on HIV-related sexual risk taking.17