Human Immunodeficiency Virus

The population of people spreading HIV is so large, and the resources devoted to detecting and prosecuting exposure crimes so small, that incapacitation can be ruled out as a plausible outcome of current criminalization initiatives. Deterrence is notoriously difficult to assess, but on each of the leading theories of the mechanism of deterrence the suggestion that criminalization will deter people from having sex or sharing needles without disclosure is implausible.

Rational actor theories posit that deterrence rests on some combination of likelihood of detection and severity of punishment. Long imprisonment is a severe punishment for a person with HIV, whose life expectancy is shorter than usual and whose need for the best medical care is greater. The chances of being prosecuted, however, are so low as to undermine the impact of a severe sanction.

Legitimacy-based theories suggest that people may obey the law because they believe it is right to do so, and in particular because they believe that the legal system operates fairly in setting and enforcing norms. The small number of prosecutions tends by itself to make any one appear freakish or arbitrary. More importantly, the criminalization of HIV entails the imposition of disputed norms of sobriety and chastity upon communities that have substantially defined themselves in their rejection or subversion of the values of the dominant groups in society. It seems unlikely that gay men or drug users will change their behavior out of respect for authority.