Human Immunodeficiency Virus

In principle, a zone of wrongful exposure to HIV can be delineated in terms of autonomy. The risk of HIV transmission through sex is low enough that a person may reasonably choose to run it, but high enough that no one should endanger another without consent. The consent principle embraces the worst cases of deliberate exposure, rape, and fraud, but also the common sexual encounters (or needle sharing) that drive the epidemic. Research indicates that many people who know they are infected with HIV sometimes engage in unsafe sexual or drug-using behavior without informing their partners of their infection. Women, with less power than their male partners, are particularly vulnerable to unwanted sexual risk.

Although most people would probably agree that concealment of one's HIV status from a sex or needle partner is wrong, there are both principled and practical objections to enforcing the norm through criminal law. Sex and drug use are voluntary activities with known (and rather moderate) risks. They are normally conducted under implicit social conventions concerning disclosure, risk-taking, and consent that may not require explicit discussion of infection. Some contend, on libertarian or privacy grounds, that the government simply ought not to be regulating such behavior. Other commentators suggest that sexual interaction is simply too psychologically complicated and socially unsettling to be sensibly analyzed in the terms of culpability offered by criminal law.

Public health professionals have worried that designating such common behavior as criminal could add to the stigma and social risk of getting tested, educated, or treated. They fear that prosecutions, particularly if they involve use of public health records to document prior knowledge of infection, can rend the fabric of privacy and cooperation necessary to effective prevention. Although empirical support for this concern is weak, even a minor negative effect would outweigh the negligible benefits of criminalization for public health.

Research has largely discredited the belief that needle sharing is a social preference in favor of the view that it is a response to the scarcity of new, sterile injection equipment. This scarcity, in turn, is attributable to drug paraphernalia and needle prescription laws designed to prevent drug users from obtaining injection equipment. It is objectionable on principle, as well as counterproductive from a public health perspective, to deliberately prevent individuals from getting sterile syringes while prosecuting those same people for sharing unsterile ones.

Mistrust is the greatest obstacle to criminal law's protection of sexual autonomy and public health. Many people are dubious of the motivation behind criminalization. Many gay men, for example, fear that HIV is used as an excuse to suppress gay sexuality. Moreover, the fact that criminalization initiatives tend to come from more conservative legislators, and are never systematically enforced, fuels suspicion that criminalization is really part of a larger struggle between social factions for normative dominance in matters of sexuality. Sexually-transmitted disease control policies have historically reflected and been a vehicle for the expression of competing social norms about sexual behavior and the status of women and minorities. On this view, criminalization of HIV is of a piece with laws prohibiting sodomy, or denying civil rights protection to gay men and lesbians.