Introduction

HIV, the virus that can lead to AIDS, has from its earliest days been associated with controversy.

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 eliminate.
• 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.

These factors 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
• policymakers and lawmakers
• lawyers, judges, jury members and others involved in criminal prosecutions
• law enforcement officers
• journalists
• 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.

The essential 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?
• What 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 wider level?

This resource delves into these and related issues in chapters on laws, harm, responsibility, risk and proof.

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 and policies.