Aim To examine why it may be acceptable to punish HIV positive individuals for unintentionally transmitting HIV through consensual sex.
Method Key issues for criminal punishment include deterrence, retribution, rehabilitation and incapacitation. This framework was applied to the justification of criminal prosecution for non-intentional transmission of HIV through consensual sexual intercourse.
Retribution This includes pain inflicted or rights removed (such as freedom) in response to an action. Criminal law is retributive. However, in England and Wales, prosecution occurs for “reckless transmission” not reckless endangerment. It is legal to take a chance, but illegal if a certain outcome occurs.
Deterrence A threatened legal sanction may prevent crime through fear of retribution. Criminalising transmission of HIV to an unknowing partner may increase disclosure. This approach is flawed. (1) The charge of reckless transmission needs the HIV positive person to know they are probably or definitely infected: criminalisation may prevent testing. (2) Criminalisation is counterintuitive to placing responsibility for an individual's sexual health with themselves, not with someone else. (3) Criminalisation stigmatises the HIV positive community.
Rehabilitation Rehabilitation in prisons is not perfect, with 39.3% of those with convictions being re-convicted of crime in 2009. Any change in behaviour in the absence of specialised programmes may be due to deterrence.
Incapacitation It is difficult to practise safer sex in prison as there may be a higher risk of coercion, sex work and covert sex. Sexual healthcare in the prison setting is unlikely to be equal to community sexual healthcare. Incapacitation cannot justify criminalisation in this case.
Conclusion Prosecution for non-intentional transmission of HIV through consensual sexual intercourse satisfies few of the justifications for punishment. The case for criminal sanctions should be reconsidered.
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