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It gives me great pleasure to introduce this special collection of papers on the theme of the criminalisation of infection and disease. The four articles selected here for Sexually Transmitted Infections, which I have had the privilege of editing in collaboration with Professor Jackie Cassell, form part of a larger response across three BMJ Group journals involving also the Journal of Medical Ethics and Medical Humanities, in which similar themed sections will appear in December. The collection represents part of a wider project that brings together healthcare professionals and academic scholars in the fields of public health, medical law and ethics, criminal law and criminal justice, for a series of seminars currently ongoing and funded by the Economic and Social Research Council, in which readers of this journal are invited to participate.1
Something that the articles collected here may be taken to suggest is that, while the criminalisation of STIs is becoming increasingly accepted on the level of national policy, it is viewed by many critical commentators with concern if not outright rejection. Why is this? Arguably what makes the criminalisation of STIs politically attractive to governments, in the context of HIV/AIDS at least, is that there remains some considerable ignorance about transmissibility and treatability.2 ,3 Questions as to just how risky it is to be exposed to STIs, and who should bear responsibility, must be crucial to the larger issue of whether and how to criminalise exposure and/or transmission. Indeed, criminal justice traditionally relies on notions of individual responsibility, retrospective allocation of blame, imposition of stigma for the violation of societal norms and the separation (conceptually and physically) of the innocent ‘many’ from the guilty ‘few’.4–6
The chances of any single act of sexual intercourse leading to infection will vary widely depending on a range of factors, as will the appropriateness of treating that exposure or transmission as a criminal offence. However, even the most risky of sexual activity (namely, unprotected receptive anal sex with an HIV positive man with a high viral load) is far less likely to lead to infection than is commonly imagined and certainly not analogous, to use an example invoked in certain criminal trials, to being attacked with a deadly weapon.7 This surely raises questions about the appropriateness of relying on the criminal law concept of ‘recklessness’ as the category of culpability. In jurisdictions where STIs are criminalised, proof of the defendant's recklessness is the most commonly required category of mens rea (‘guilty mind’), and means establishing the exposure of the victim or complainant to an ‘unjustifiable risk’. If a survey by Knauper and Kornick8 is taken to represent popular belief, then it would seem that just 3.9% of people have any idea of the true transmissibility of HIV (between 1/50 and 1/20009), with 61% of their respondents believing that the risk to a woman of a single act of unprotected intercourse with an infected man was over 1/2 (50%).
Transmissibility is only one of a great number of issues on which ‘popular ignorance’ may influence attitudes towards criminalisation. Critics of punitive responses to infection have also worried that criminal sanctions impact disproportionately on groups already identified as marginal and/or vulnerable. These include sex workers and intravenous drug users whose activities may sometimes draw the attention of the police.10–12 Certainly the issue of whether and how criminal justice measures may be counterproductive in the sense of exacerbating an already risky environment for those people most at risk is one that has deservedly incited serious critical debate, and to which this collection seeks to contribute. In their short article ‘Female Sex Workers Incarcerated in New York City Jails: Prevalence of Sexually Transmitted Infections and Associated Risk Behaviors’ for example, Homer Venters et al draw attention to the particular vulnerabilities of female sex workers in New York City, which includes but is not limited to exposure to sexually transmitted infections. Although, as Venters admits, more detailed research and analysis is necessary before confident conclusions can be drawn, their research raises difficult questions about the wisdom of incarcerating female sex workers who are often already marginalised and disempowered.
A second shared theme is a tension between the aims and impacts of criminalisation that leads to ambivalence as regards notions of stigma and agency. As Lucy Stackpool-Moore argues in ‘The intention may not be cruel, but the impact may be…Understanding Legislators' Motives and Wider Public Attitudes to a Draft HIV Bill in Malawi’, although proposed legislation in Malawi is backed by political rhetoric about the need to combat the stigma of HIV, it nevertheless contains criminalising provisions that are deeply stigmatising. To this end it stipulates severe jail terms for HIV transmission, failure to disclose one's infection to partners and failure to use a condom. As regards agency, Stackpool-Moore is critical of moves to criminalise STI-transmission on the basis that it simultaneously exaggerates, misleads and denies the agency of the people who may find themselves affected. She is not alone in identifying such ambivalence, and Lonzozou Kpanake et al's ‘Criminal prosecution of a male partner for sexual transmission of infectious diseases: The views of educated people living in Togo’ emphasises that governments of African nations are increasingly resorting to criminalisation—and in the example of the West and Central African ‘model law’ in particularly draconian style—despite marked opposition from civil society groups that for some time now has included UNAIDS.
Third is the particularly difficult challenge to traditional approaches to the moral justification for criminal sanctions. Matthew Phillips, in his paper ‘Imprisonment for non-intentional transmission of HIV: Can it be supported using a generic tool for justifying criminal sentencing?’, argues that retribution is the only one of the traditional accounts of criminalisation that can provide any credible justification here: the other more ‘practical’ justifications (that penal sanctions may actually have some positive impact on the spread of infection) having been shown to lack plausibility in this context. The troubling implication that criminalisation may be capable of doing nothing more practical or pragmatic than ‘sending a message’ about accepted norms of responsibility and behaviour, must be of concern to policy makers, and highlights the fourth major theme of these collected papers, namely the framing of infection in the legal and popular imaginary. Three of the four papers here refer to persistence of the idea that HIV is a ‘death sentence’—a killer as opposed to a life-limiting condition, and speculate that despite advances in the technology and availability of antiretroviral treatment, such a framing can only assist policy makers for whom criminalisation may seem to be the only way to be ‘seen to be doing something’ about STIs generally, and HIV/AIDS in particular.
This BMJ Group collection is presented as a contribution to debate within clinical, legal and academic settings. The related and currently ongoing Economic and Social Research Council seminar series will continue with a 1 day event in Southampton on Tuesday 10 September 2013, focusing on questions of public health, information and moral panic, with a programme of expert speakers (including Lucy Stackpool-Moore). For more information or to book one of the few remaining places, please contact me by email (D.Gurnham@Soton.ac.uk).
Competing interests None.
Provenance and peer review Commissioned; internally peer reviewed.