The positive impact on public health

As discussed in the chapter: Fundamentals, the functions of criminal law can be broadly characterised as deterrence, incapacitation, rehabilitation and retribution. A reasonable criterion, then, for determining whether laws and prosecutions relating to potential or actual HIV exposure or transmission have a positive impact on public health would be to examine whether these functions help prevent HIV transmission.

In other words, does using criminal law to address potential or actual HIV exposure or transmission actually deter enough people with HIV from behaving in ways that might put others at risk of infection? Does it incapacitate convicted offenders so they cannot continue putting others at risk? Does it rehabilitate by encouraging them to change permanently the problematic behaviour in question? Since retribution is unrelated to the primary objective of HIV prevention, it will not be considered as a rationale for a positive impact on public health.

Before examining the other three functions of the criminal law individually, it is crucially important to understand that:

• Most HIV transmission takes place during sex between two consenting adults, neither of whom is aware that one of them is living with HIV.¹

• People unaware they are living with HIV are more than twice as likely as those who are diagnosed HIV-positive to engage in HIV-related sexual risk-taking behaviours.²

• Most HIV-positive people aware of their status do not want to^3,4,5,6,7,8 – and in fact do not – transmit HIV.⁹

Consequently, this begs the question as to whether the criminal law can actually have much of an impact on behaviour that results in HIV transmission. As Burris and colleagues note: "If the prime task of prevention is to shift the at-risk population in the direction of having safer sex with fewer partners, detecting, punishing and incapacitating a handful of bad actors is not a wise use of prevention resources."¹⁰

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

The incapacitation rationale of using the criminal law to address potential or actual HIV exposure or transmission is that it serves public health by imprisoning, and thus separating from society for a period of time, people living with HIV who have placed others at risk of HIV infection. In order to be an effective public health tool, incapacitation would then require reduced possibilities of HIV exposure or transmission within prison settings because, on release, health problems created in prison ultimately become problems for the community as a whole.

There are no studies regarding the effectiveness of incapacitation on reducing HIV transmission. A study from the United States that systematically examined all HIV-related prosecutions between 1986 and 2001 found 211 prosecutions involving sexual exposure with 138 convictions.^18,10 These data would tend to rule out a major influence on the HIV epidemic through incapacitation because far too few people were being imprisoned to have a serious impact on transmission.

In practice, incapacitation appears to do little to prevent the risk of further HIV transmission because HIV-risk behaviours, such as sexual violence, unprotected sex, tattooing and/or the sharing of drug-injecting equipment, are prevalent in prisons around the world.¹⁹ A study from Georgia in the United States²⁰ found that between July 1988 and February 2005, 88 prisoners who had tested HIV-negative during mandatory testing on entry to prison, subsequently tested HIV-positive, indicating that they acquired HIV during incarceration. It found that sex between men and tattooing was associated with HIV acquisition.

Harm-minimisation measures to reduce the risk of HIV exposure – for example, access to condoms and/or sterile injecting or tattooing equipment – are widely misunderstood and are inconsistently provided²¹ or are not available at all.²² Consequently, most prisons are places where both people living with HIV and those who are uninfected are seriously curtailed in their ability to exercise control over HIV exposure.²³

The rehabilitation rationale of using the criminal law to address potential or actual HIV exposure or transmission is that it serves public health by changing the behaviour of people who have been found guilty and that they will no longer put others at risk following their release from prison.

There are no studies regarding the effectiveness of rehabilitation on reducing HIV transmission. In a number of cases, individuals have been prosecuted more than once for behaviour that risked exposing their sexual partners to HIV following their release from prison. Evidence of such recidivism can be seen in recent media reports from Australia, Canada, the United Kingdom and the United States (see criminalhivtransmission.blogspot.com).

In practice, rehabilitation specifically to prevent the risk of further HIV transmission is seldom, if ever, a goal of sex-offender programmes that may be offered in some prison settings²⁴ and 'positive-prevention' programmes focused on helping prison inmates overcome their difficulty in managing risky sex and/or disclosure of their HIV-positive status do not appear to exist.²⁵