Introduction

Edwin J. Bernard
Published: 18 July 2010

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Why does criminal law treat HIV differently from other diseases? What social or cultural ‘filtering’ of the ‘meaning’ of HIV infection informs the decisions of complainants to complain, police to investigate, prosecution offices to pursue, and judicial officers to hear these cases and not cases of other disease transmission (hepatitis, syphilis, herpes, chlamydia, measles, swine flu, for example)? This question must also be examined in light of the increase in HIV-related prosecutions occurring at a time when the ‘harms’ of HIV infection at population level might be generally understood as having decreased when compared to the harms associated with HIV diagnosis in the early 1980s (defined by the absence of effective treatment and complete ostracism) when no prosecutions occurred.

Sally Cameron and John Rule, editors, The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality. 2009.1

What does it mean to assert that HIV ‘causes harm’? While individuals – including lawmakers and judges – will inevitably have different opinions about the matter, it is important to base these opinions on the full body of available evidence about HIV rather than on isolated facts, overgeneralisations or long-outdated ways of thinking about the health consequences of being HIV-positive.

In practice, in many jurisdictions much of the reliable, up-to-date evidence on HIV-related 'harm' appears to be overlooked. The law – based on statutes written in the past, or rulings that have been shaped by legal precedents – looks backwards. In contrast, medicine moves forward. Medical advances have resulted in such a rapid and vast improvement in both quantity and quality of life for many people living with HIV that they are "virtually unprecedented in the history of medicine".2 Since the science of HIV changes so quickly, it is perhaps inevitable that outdated or incorrect notions of the impact of HIV's 'harm' has informed so much of the logic behind HIV-related criminal laws and rulings.3

The purpose of this chapter, then, is to consider the ‘harm’ of HIV by taking up the following topics:

  • the impact of HIV on physical and emotional wellbeing

  • the 'harm' of HIV in the popular imagination

  • how popular perceptions of harm may inform legislation and prosecutions

  • the legal construction of HIV-related harm.

Another important aspect of harm in relation to the application of the criminal law to potential or actual HIV exposure or transmission – the nature of the harm to public health and/or human rights that may be caused by such criminalisation – is addressed separately in the chapter: Impact.

References

  1. Cameron S and Rule J Outside the HIV strategy: challenges of “locating” Australian prosecutions for HIV exposure and transmission. in Cameron S and Rule J (eds) The Criminalisation of HIV Transmission in Australia: legality, morality and reality National Association of People with AIDS (NAPWA), 2009
  2. National Post Success in the fight against AIDS has bred complacency. 14 May, 2008
  3. James R and Azad Y Do judges understand HIV? A review of court transcripts from cases involving HIV transmission. 15th British HIV Association Conference, Liverpool, Poster P21, 2009
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.