Criminalizing HIV transmission: Is imprisonment ever the right response?

This month sees the publication of a ‘Consensual Statement’  by Australian medical professionals on ‘Sexual Transmission and the Law’.  This draws on a similar Canadian ‘Consensus Statement’  issued in 2014.

The involvement of the law in this area remains a highly controversial matter.  It is easy to assume that UNAIDS policies underlining the public health disbenefits of “overly broad criminalization” largely concern those African nations which have recently adopted draconian legal previsions in response to the HIV crisis (Kpanake & Mullet/STIs; Stackpole-Moore/STIs).  Yet we should not forget that prosecution and imprisonment for transmission of HIV continues to occur in first-world countries as well (e.g. 16 custodial sentences in England over the period 2001-2012 (Phillips & Sukthankar/STIs)).  National jurisdictions differ in respect to whether, in order to be subject to prosecution, the transmission must be intentional or reckless.

Many in sexual health, I suspect, would reject the idea of involving the criminal law in such cases.  Stackpole-Moore/STIs, for example, argues that its use “in order to guide normative behaviour” is irreconcilable with the concern to avoid internalized stigma among at risk populations.  According to S, employing criminal sanctions in this area involves promoting just the kind of social stigma that health policy makers have found so counter-productive in fighting the epidemic.  However, this side-steps the question whether there might ever be a moral argument for legal sanctions regardless of their impact on behaviour.  Phillips & Sukthankar/STIs, in their theoretical examination of traditional justifications for sentencing to imprisonment, recognize the possibility that ‘retributive justice’ could provide some genuine justification for imprisonment for HIV transmission.  This might explain why those African legislators responsible for passing the recent severe previsions, tend, when asked about their motivations, to revert to the argument of retribution – even where that is not the ‘official’ justification (Stackpole-Moore/STIs and Kpanake & Mullet/STIs).

To come at last to the recent Australian and Canadian statements – these discourage, even if they don’t quite exclude, the involvement of the law.  However, they do so not on the grounds of a principled rejection of all justifications for criminalization (such as advocated by Stackpole-Moore/STIs), but on the grounds of the changing reality, and changing perceptions, of HIV.  They specify the risk of per sex-act transmission – in the case of penal-vaginal transmission, rated low (0.4%-1.4%) – and point to the effectiveness and tolerability of treatment.  If HIV is no longer a ‘death-sentence’, then transmitting HIV to a partner can hardly be considered ‘killing’.  Still more conclusively, perhaps, they point to the inadequacy of phylogenetic analysis as forensic evidence, which, they argue, “simply cannot determine beyond reasonable doubt that the reference samples are linked”.

Yet it should be remembered that the first two of these three considerations (unlike the claims of retributive justice) are context-dependent.  Whether or not HIV amounts to a ‘death sentence’ may depend on where you live.  Were the same kind of arguments to be applied in the case of the African countries discussed by S and K&M, they would need to take account of the very different health realities obtaining in those countries.