I am reproducing here a commentary that I wrote for the Bioethics Forum of the Hastings Center.
The Canadian legal system is currently bracing for another case in which a man is prosecuted for allegedly infecting multiple unsuspecting women with the HIV virus who had unprotected sexual intercourse with him. Two of these women have died of AIDS. Various other cases have successfully been prosecuted, usually involving men who knew they were HIV infected and who chose to have unprotected sexual intercourse with a number of women. (See Matthew Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission, Routledge, 2007.) Some of these women became infected, others did not. Either way, the HIV-infected men knowingly subjected these women to the risk of infection with a life-threatening illness.
Many liberal democracies have made HIV transmission a criminal offense, including the United States, Canada, Sweden, Germany, Norway, Denmark, the Netherlands, and the United Kingdom. In most countries, HIV-infected people have been successfully prosecuted for transmitting HIV to their sexual partners. The main reason for this is – obviously – that an HIV infection is harmful to the carrier of the virus. At this point in time it means the infection with a delayed-onset serious chronic illness that results into an, all other things being equal, excess number of deaths among those infected.
Some AIDS activists and their academic allies insist that criminalizing HIV transmission and punishing the perpetrators is not a sensible way for us as society to say that such conduct is unacceptable. In a recent commentary in the Journal of the American Medical Association, Scott Burris and Edwin Cameron, both legal scholars, assert that “the use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.” But the arguments brought against the criminalization of HIV transmission simply do not withstand critical scrutiny.
Silliest, perhaps, is the argument that criminalizing HIV transmission will not necessarily prevent people from transmitting the virus. On that logic we might as well do away with traffic regulations that punish people for speeding. Nobody is naive enough to assume that such rules prevent all people from speeding, but they might act as a deterrent in some or even many cases. It also sends a strong signal that we as a society think such harmful conduct is unacceptable. Another often-criticized argument is that the law is not an effective public health tool. Nobody in favor of criminalizing HIV transmission claims that it is, however. Criminalization might help in preventing some new infections, but we might also wish to deploy the law to punish behavior that led to significant harm to others.
Some have argued that there is no evidence of a deterrence effect from criminalization. It is difficult seeing how this evidence could be established to the point of it becoming uncontroversial, however. It has also been suggested that putting the onus of protecting their partners on an infected person, or even requiring them to advise their sexual partners of their HIV status, would have a detrimental effect on people’s willingness to get tested. The proposition here then is that that the criminalization of HIV transmission could actually yield harmful public health consequences. This argument might have had some currency when successful AIDS treatments did not exist. In those bygone times, people at high risk of HIV infection had little incentive to find out about their infection, given that there was very little that they could do about it if they tested positive. Today, however, life-preserving treatments exist. It strikes me as highly implausible that someone at risk of HIV infection would choose to forgo potential timely life-preserving care in order to be able to continue to have unsafe sex without worries about sanctions.
Another argument alleges that prosecutions of gay men who subjected their sexual long-term partners recklessly and knowingly to the risk of HIV infection demonstrates evidence of a homophobic legal system. This charge seems particularly baseless. A homophobic legal system would permit gay men to continue to engage in high-risk behavior. A society that cares about the well-being of its gay members will try to prevent new infections of gay men from occurring, even if it means prosecuting some of its gay citizens.
Then there is the racism charge. Having lived for a number of years in South Africa, I have come to appreciate that the prevalence of the virus is substantially different in different populations in different parts of the world. I am not surprised to see more African-born heterosexual men prosecuted than North American Caucasian men. The average South African heterosexual African male is substantially more likely to be infected with HIV than is the average Canadian-born, heterosexual Caucasian male. The prevalence of HIV in the former population is substantially higher. No big surprise then that among the few people prosecuted overall there should be an African face. None of that, in its own right, constitutes evidence of racism.
Another argument states that we should not criminalize HIV. Yes, the claim, published recently by legal minds in a leading American medical journal, is that we are criminalizing HIV if we punish people for transmitting it. This is a truly strange argument. If we punish people for transmitting HIV to their partners, who had no reason to assume that they were consenting to that risk when they had unsafe sex, what we criminalize is what people do with the virus, not the virus itself or even the people who happen to be infected.
There are reportedly about 60,000 HIV-positive people in Canada and about 1,000,000 HIV infected people in the USA. So far, very few have been prosecuted for allegedly transmitting HIV. The same is true for most other countries. I do not believe that we are sliding down a slippery slope, at the bottom of which we will launch legal proceedings against most infected people. One reason is that most infected people behave very ethically. The HIV-infected people I know personally prefer to forgo sex than to engage in unsafe sexual activities, even if their sexual partners insist. The thought of harming their sexual partners horrifies them. And so it should.
There is a much smaller number of infected people out there, however, who clearly could not care less about the well-being of people they profess and pretend to love and care about. It seems to me that virtually all of the cases that have been prosecuted so far, both in Canada and elsewhere, are about those sorts of cases, and not about people who acquired the virus during one-time sexual encounters with partners they knew little to nothing about. Most infections occur under the latter circumstances, and they are fairly straightforward cases of harm to self. The ethical and legal maxim volenti non fit iniuria should be applied here: if you consent, you cannot complain. There is little doubt in my mind this explains more than anything else why we have seen few prosecutions. The successful prosecutions so far in the United States, Canada, and Britain have focused on egregious cases of tremendously harmful wrong-doing.
It is the role of the state to use the criminal law to punish such wrong-doing.
Udo Schuklenk, professor of Philosophy at Queen’s University, holds the Ontario Research Chair in Bioethics and is Joint Editor-in-Chief of Bioethics, the publication of the International Association of Bioethics.