Many states and countries now allow the prosecution of HIV-positive people for all forms of transmission, including reckless and accidental, and even for exposure where no transmission has taken place (Avert.org, n.d). I found a table from avert.org that summarize some of the arguments for the criminalisation of HIV transmission, and the counter arguments against such legislation:
FOR CRIMINALISATION | AGAINST CRIMINALISATION |
If you are HIV positive, failing to use protection is wrong, and people who do wrong should be brought to justice through the law regardless of their health status or background. | Criminalising HIV positive people does not address the complexities involved in disclosure and increases HIV stigma, particularly when positive people being brought to trial are demonised by the press. |
Giving someone HIV is akin to murder. | HIV is an unpleasant virus to live with, but it is no longer a death sentence, and with modern antiretroviral drugs, HIV positive people can live a healthy life for many years. |
If you are HIV positive, it is your duty to use protection. The idea of 'shared responsibility' is based on ideals that came about when HIV was still a 'gay' illness. With heterosexual relationships, it is not always a practical reality. Many women, even in the West, do not necessarily have the power to force their partners to wear a condom. | The more cases that come to court, the more people will believe that the responsibility for having safe sex should lie solely with positive people. This could in turn lead to more incidents of unprotected intercourse, with people believing it to be a legal responsibility for their partner to disclose any infection. Safe sex should always be a shared concern. |
Criminalising people for reckless transmission will act as a deterrent and will make HIV positive people think twice before having unprotected sex. | The law has little effect on people's sexual behaviour, as is clear from the number of teens who have illegal underage sex. Criminalisation of transmission does however enable lovers to use the law as a way of exacting revenge. In such cases, the original HIV positive partner would always be at a natural disadvantage. |
To ensure that people don't believe they are immune from prosecution just because they haven't taken an HIV test, it should be possible to call an HIV positive person 'reckless' even if they have never actually had an HIV test - knowledge that they have put themselves at risk in the past should be enough to make them aware of their HIV risk and thus legally obliged to use a condom in the future. | Prosecuting positive people for reckless transmission could well leave many afraid to be tested, believing that if they do find out their status, they could be liable to all sorts of criminal charges. Avoiding this problem by telling people they should be 'aware' of their risk even if they haven't tested for HIV is entirely unfair. It is also impossible to assess or judge how 'aware' of past risk of infection any one person is or should have been. |
Putting people in prison will stop them from spreading HIV and endangering the community. | In the short term, this may be true, but imprisonment does nothing to help people come to terms with their HIV and take a safer attitude towards sex. Education and psychological counselling would be a more appropriate course of action in many cases. The sharing of needles for injecting drugs and the high incidence of male rape and sex between men in prisons also mean that HIV transmission is still perfectly possible, even behind bars. |
Criminal cases help to uncover and warn lots of HIV positive people who might not otherwise learn their status. | Criminal cases give police licence to investigate the background of anyone they suspect of having passed on HIV. This can represent a serious invasion of privacy as well as a potential breach of confidentiality and anonymity, and it may well be entirely unjustified. |
Laws on the transmission of diseases do not necessarily apply just to HIV. Many laws relating to HIV could potentially be used to prevent people spreading many other fatal illnesses. | No other illnesses are treated with the same hysteria as HIV, and few people are ever criminalised for transmitting them. It is for example very unlikely that anyone would think to prosecute an employee of a residential care home for coming into work with the flu and giving it to the residents, even if several of those residents subsequently died. HIV is only singled out in criminal cases because of its association with stigmatised groups and promiscuity. |
HIV positive people can easily be divided into legal definitions of "guilty" (people who 'bring HIV upon themselves' and recklessly give it to others) and "innocent" (victims who were infected through no fault of their own, and would never put anyone else at risk). | These categorisations are far from clear cut, and most HIV positive people have at some point in their lives belonged to both. After all, everyone who transmits HIV was once a 'victim' of someone else with the virus. |
Vulnerable women who do not have control over their sexual relations will find protection in laws that would prosecute reckless male partners. | Women will face a greater risk of prosecution as they more often know their status through attending health clinics more frequently. A HIV positive man may accuse his female partner of infecting him, because she was diagnosed first, even if he infected her and was not diagnosed until much later. |
According to Avert.org:
As of the end of 2008, 36 states in America had prosecuted HIV positive individuals for criminal transmission or HIV exposure, with many having laws specifically mentioning HIV. Some states punish those convicted of offences such as prostitution or rape more severely if the person knows they have HIV. Spitting or emitting HIV-infected bodily fluids at another person while in prison is also an offence in some states. Failure to disclose one's HIV status to a partner is most often the only necessary basis for prosecution, rather than intent to infect someone else or actual transmission of HIV. At least nine HIV-positive individuals in the US have been sentenced for spitting with sentences ranging from 90 days to 25 years. Samples of the laws are below:
Alabama – Engaging in activities likely to transmit an STD is a class C misdemeanour.
California – Engaging in uninformed, unprotected sexual activity (exception for consent) with the intent to infect the other person is a felony punishable by up to 8 years in prison.
Colorado – Committing or soliciting prostitution with knowledge of being HIV positive are class 5 and 6 felonies.
Florida – Unlawful for person with HIV, with knowledge both of their infection and risk of sexual transmission, to have sex without disclosure and consent having taken place.
Michigan – It is a felony to engage in sexual penetration, however slight and regardless of whether semen has been emitted, without informing the other of his/her HIV status.
Missouri – It is a class B felony to expose a person to HIV if defendant knowingly acted in a reckless manner without knowledge and consent through oral, anal or vaginal sex. If complainant becomes infected, the charge is a class A felony. The use of a condom is not a defence.
New York – The applicable part of the law is reckless endangerment in the first degree for engaging in ‘conduct which creates a grave risk of death to another person’.
Pennsylvania – The state Superior Court ruled in a 2006 case involving oral sex that HIV positive people who do not disclose their status to their sexual partners can be charged with reckless endangerment. It follows that any kind of unprotected sex without disclosure could be prosecuted.
Texas – HIV transmission cases have been brought to court under aggravated assault laws whereby a person “intentionally, knowingly, or recklessly… uses or exhibits a deadly weapon as part of an assault”. Saliva of an HIV infected person is considered a deadly weapon.
California – Engaging in uninformed, unprotected sexual activity (exception for consent) with the intent to infect the other person is a felony punishable by up to 8 years in prison.
Colorado – Committing or soliciting prostitution with knowledge of being HIV positive are class 5 and 6 felonies.
Florida – Unlawful for person with HIV, with knowledge both of their infection and risk of sexual transmission, to have sex without disclosure and consent having taken place.
Michigan – It is a felony to engage in sexual penetration, however slight and regardless of whether semen has been emitted, without informing the other of his/her HIV status.
Missouri – It is a class B felony to expose a person to HIV if defendant knowingly acted in a reckless manner without knowledge and consent through oral, anal or vaginal sex. If complainant becomes infected, the charge is a class A felony. The use of a condom is not a defence.
New York – The applicable part of the law is reckless endangerment in the first degree for engaging in ‘conduct which creates a grave risk of death to another person’.
Pennsylvania – The state Superior Court ruled in a 2006 case involving oral sex that HIV positive people who do not disclose their status to their sexual partners can be charged with reckless endangerment. It follows that any kind of unprotected sex without disclosure could be prosecuted.
Texas – HIV transmission cases have been brought to court under aggravated assault laws whereby a person “intentionally, knowingly, or recklessly… uses or exhibits a deadly weapon as part of an assault”. Saliva of an HIV infected person is considered a deadly weapon.
Avert.org. (n.d). Criminal Transmission of HIV. Retrieved from http://www.avert.org/criminal-transmission.htm
DID YOU KNOW
"Women who only have sex with women are generally at much lower risk for getting any sexually transmitted disease. But in rare cases, they can still get HIV. One report tells of a lesbian who was infected through sharing sex toys with an HIV-positive woman. Also, some women who consider themselves lesbians occasionally have sex with men, and can get infected that way. Lesbians who use drugs and share needles can get HIV from a needle that has been used by someone who is HIV positive" (The Well Project).
The Well Project. (2010, July). Myths about HIV. Retrieved from http://www.thebody.com/content/whatis/art58887.html
