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HIV Transmission: Is It a Criminal Act?

Criminalizing HIV Transmission is Not the Answer

By

Updated May 22, 2009

The newspaper tells the story: An HIV positive man, an HIV negative sexual partner, and HIV transmission occurs. The problem with this occurrence of HIV transmission is the HIV negative partner had no idea her sexual partner was infected with HIV. The infected lover neglected to disclose his HIV positive status. The newspaper story goes on, detailing the court trial that followed. The HIV positive partner has been arrested and is being prosecuted for HIV transmission -- infecting a partner without disclosing his positive status.

This scenario is occurring with increased frequency around the world. And as the number of cases grow, the debate surrounding the criminalization of HIV transmission grows as well. Some feel that transmitting HIV to a sexual partner without disclosing should be prosecuted like any other crime. Others believe it is a crime of morality and should be dealt with sternly and without mercy. However, there are people concerned about convicting those who infect others even if the positive person deliberately withheld his or her HIV status. They feel that only rarely is HIV transmission done to harm another. Their belief is that disclosure doesn't happen for one of two reasons; the infected person has no idea they have HIV or they are afraid to disclose, fearing prejudice and retribution from the community.

So that's the debate: Should HIV transmission be a crime if it occurs because HIV disclosure did not take place? Should HIV-specific laws be put in place to deal with those who don't disclose before having sex? In short, should HIV be criminalized? Let's look at the debate.

HIV Transmission - The Statistics

The transmission of HIV infection continues to occur at a steady pace in the United States. Here are the latest transmission figures for the United States, based on transmission route:
  • Male-to-male sexual contact (MSM) - 22,472
  • Injection drug use (IVDU) - 4,939
  • MSM / IVDU - 1,260
  • Heterosexual contact - 13,627
  • Other risks / risk not identified - 35,180
As these numbers show, HIV transmission continues. It's not known just how many of the heterosexual transmissions listed are a result of non-disclosure events. However, surveillance figures estimate that about 25% of people infected with HIV are not aware of their infection -- a statistic that some believe contributes to most of the heterosexual infections and is associated with non-disclosure sexual contact.

Why Should HIV Transmission be Criminalized?

It doesn't take much of an imagination to figure out the argument for criminalizing HIV transmission. Obviously, intentionally choosing not to disclose HIV infection to sexual partners puts the partner in harms way. In fact, some supporters of criminalizing HIV transmission equates the severity of the crime to that of someone who places a gun to the head of another. In the minds of supporters, any action or inaction that harms or could harm another should be a criminal act; this includes infecting someone with HIV.

Some supporters of criminalizing HIV cite the harm non-disclosure can cause to the community as a whole. Without disclosure, more and more people will be infected with HIV, meaning the public health has been jeopardized by the failure to disclose. Simply put, supporters of criminalization say those guilty of non-disclosure and infection should be prosecuted because their act harms the individual and endangers the state of public health in the community.

Why Should We Not Criminalize HIV Transmission?

Those opposing criminalizing HIV transmission offer several reasons for why they feel it is a bad idea. In their opinion, laws that criminalize HIV:
  • do nothing to reduce the rate of HIV infection
  • undermine prevention efforts by deterring people from being tested
  • add to the fear and stigma that follow HIV positive people
  • punish even under circumstances that are not blameworthy
  • are often applied unfairly and inconsistently

Situations Where Punishment is Called For

Even the most staunch opposers of criminalizing HIV transmission admit that, under certain circumstances, those who transmit HIV with the intent to do harm should be punished. But, they also believe that there are laws already on the books that can be used to prosecute these rare few. They propose that laws that are specific to HIV transmission will only have a negative impact on HIV infected people and prevention efforts across the country and around the world.

Sources:

Ahmed, A.; "Criminalizing HIV Transmission: Undermining Prevention, and Justice"; RH Reality Check; 28 Jan 2009.

Jurgens, R.; "10 reasons why criminalization of HIV exposure or transmission is bad public policy";Open Society Initiative; 2008.

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