HIV, the virus
that can lead to AIDS, has from its earliest days been associated with
Why has HIV generated so much more social, political and ethical debate than other potentially life-threatening illnesses?
- In large part,
the sheer scale of the epidemic: every region of the world is affected, and
over 33 million people are living with the condition; more than 2 million have
died of HIV-related causes.
- In addition,
although effective treatment is now available for many, the virus has proved a
major scientific and medical challenge to understand, to disable and to
- Coupled with
this, some of the behaviours that transmit HIV are associated with strong
social taboos, and some of the populations most affected by the disease (women;
men who have sex with men; people who use drugs; sex workers; migrants; and
those living in poverty, for example) are already disproportionately
marginalised in society.
have shaped the global response to HIV in complex ways, with major debates and
decisions being as much about beliefs and values as about scientific evidence.
People often have strong feelings about many HIV-related issues. The most
constructive way to engage in the challenges posed by the epidemic is not to
ignore this reality, but rather to situate it within a larger framework that
examines how emotions inform opinions and how factual information and logical
reasoning should inform opinions as well.
The purpose of
this resource is to put forth such a framework in relation to HIV and the criminal
law. The resource examines the key legal, scientific, ethical and social issues
raised by the application of criminal law to HIV exposure and transmission. It
is intended to serve as a 'primer' and 'filler' for people needing to
understand these issues, as well as providing information on the current
situation across the globe. It may be particularly useful for:
- people living
with HIV and their advocates
judges, jury members and others involved in criminal prosecutions
- law enforcement
- health and
social workers advising people with HIV in health care and other settings.
This book does not
seek to bring readers around to a specific outlook on the criminalisation of
HIV exposure or transmission. The intricacies of how people develop and act on
their beliefs make it unlikely that there will ever be widespread agreement on
some of the issues in this realm. Instead, it provides a guide to thinking
systematically about the facts and concepts most relevant to HIV-criminalisation
laws, cases and debates.
questions in most cases in which criminal charges are brought for alleged HIV
exposure or transmission are:
- Was the
defendant responsible for causing a significant or unreasonable risk of harm to
the alleged victim(s)?
- What evidence
exists to support or refute the charges?
In the context
of HIV, these seemingly straightforward questions encompass numerous other
questions that may engender fierce debate. For example:
- Is it
appropriate to legislate against HIV exposure and transmission, and – if so –
what sort of laws should these be? What are the risks of legislating for this
behaviour and/or of using existing, non-HIV specific laws to prosecute for HIV
exposure or transmission?
- What harm does
exposure to HIV or HIV infection cause relative to other forms of harm?
- Who should take
responsibility for preventing HIV transmission/infection? Do HIV-positive
people have more of an HIV-prevention duty than HIV-negative people?
constitutes a significant or unreasonable risk of HIV exposure or transmission?
- How does
biological, epidemiological and behavioural evidence support or refute the
arguments that are put forth about HIV-related responsibility, risk and harm?
- What impact do
such prosecutions have – on individuals, on their relationships with others
(both professional and personal), on public health, and on communities at a
This resource delves
into these and related issues in chapters on laws, harm, responsibility, risk
In addition, an
introductory chapter provides an overview of the issues involved in this topic.
It includes an overview of HIV, AIDS, modes of transmission and the legal
concepts that have shaped thinking and action in this arena for over two
decades. The chapters Impact and Fundamentals discuss, respectively, the impact of criminalising
HIV transmission and/or exposure, and alternative legal and policy tools for
accomplishing HIV-prevention goals.
And finally, the chapter Details, which provides a summary of the history and current legal situation (accurate
at 1 June, 2010) in countries that have chosen to criminalise any element of
HIV exposure or transmission, illustrates the global implications of such laws