The ethics of responsibility

In November 2007, the UNAIDS Secretariat and the United Nations Development Programme (UNDP) hosted an international consultation on the application of the criminal law to potential or actual HIV exposure or transmission.² The consultation included representatives of other United Nations agencies, parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV.  Their discussions highlight the difficult moral, ethical and practical issues raised by such criminalisation.

UNAIDS consultation participants unanimously agreed that potential or actual exposure to HIV that did not result in transmission was not 'harmful' enough to criminalise and that criminal liability for HIV transmission should never fall on people living with HIV who:

• are not aware that they are HIV-positive

• do not know how HIV is transmitted.²

Consultation participants further agreed that there should be no criminal liability for HIV transmission if the person living with HIV has done at least one of the following prior to consensual sex:

• Taken measures to reduce the risk of HIV exposure, such as using condoms or otherwise practising HIV-related risk-reduction methods

• Disclosed their HIV-positive status to their partners or reasonably believed their partner had consented to the risk of HIV exposure.²

They also agreed that obligated disclosure is not ethically necessary and that “[u]nlike the case of deliberate deceit, in the case of simple non-disclosure the partner of the HIV-positive person has not been misled into basing choices on wilful misinformation. Having a criminal law requiring disclosure of HIV infection would fall most heavily upon those whose circumstances already make it difficult to disclose.”²

They noted that "sexual activity, with any partner, always carries some risks of harm. A person engaging freely and voluntarily in sex does not necessarily need to know the HIV status of the sexual partner. He or she may choose not to engage in certain sexual acts so as to avoid the higher degree of risk they pose, may choose to take preventive measures to lower the risk to a level they find acceptable (such as using condoms), or may choose to engage in unprotected sex aware that a risk of HIV transmission may exist.”²

However, consultation participants were divided over the more difficult issue of whether someone who has neither disclosed nor taken HIV risk-reducing measures should be criminally liable if transmission has resulted. Some expressed the belief that there was a moral and ethical difference between non-disclosure and “deliberately deceiving someone as to the risk of harm of engaging in unprotected sex.” These participants argued that such 'sins of commission' may be criminalised if there was no legitimate justification or excuse for such deception, such as fear of violence. Nevertheless, they appreciated that this moral and ethical distinction may be too difficult to legislate for, and/or to prove, or defend.²

For more on how the criminal justice system approaches the criminality of the defendant’s state of mind see the chapter: Proof