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Human Immunodeficiency Virus (HIV) is usually spread unintentionally, but in the course of sexual or drug-using conduct that is intentional. Since the beginning of the HIV epidemic, criminal law has been proposed, and sporadically deployed, as a means of addressing conduct that exposes others to, or actually infects them with, HIV. This research paper surveys the practical, legal, and social issues that arise in the ‘‘criminalization’’ of a public health threat.
The case for criminalizing conduct that spreads HIV is straightforward. People who deliberately or recklessly expose others to or actually infect others with HIV are said to deserve punishment. Such punishment might have the added benefit of deterring others from creating the same risks. Criminal laws certainly express society’s disapproval of the conduct, which may provide additional deterrence through social influence. In practice, however, the issue is much more complicated.
Criminalization As A Health Measure
The public health case for criminalization is weak. Criminal law can be an effective tool of HIV prevention only if it incapacitates or deters the people whose behavior is responsible for a significant proportion of new cases, but criminalization stumbles almost immediately on a paradox. The behavior most widely accepted as wrong—deliberately using HIV as a tool to harm or terrorize another—is too rare to influence the epidemic, whereas the behavior most responsible for spreading the virus—voluntary sex and needle sharing—is difficult and controversial to prohibit. Both the impetus for and opposition to criminalization reflect profound social differences over the acceptability of homosexuality and drug use, and the clash of values those differences entail.
Sex and Needle Sharing As Crime
In principle, a zone of wrongful exposure to HIV can be delineated in terms of autonomy. The risk of HIV transmission through sex is low enough that a person may reasonably choose to run it, but high enough that no one should endanger another without consent. The consent principle embraces the worst cases of deliberate exposure, rape, and fraud, but also the common sexual encounters (or needle sharing) that drive the epidemic. Research indicates that many people who know they are infected with HIV sometimes engage in unsafe sexual or drug-using behavior without informing their partners of their infection. Women, with less power than their male partners, are particularly vulnerable to unwanted sexual risk.
Although most people would probably agree that concealment of one’s HIV status from a sex or needle partner is wrong, there are both principled and practical objections to enforcing the norm through criminal law. Sex and drug use are voluntary activities with known (and rather moderate) risks. They are normally conducted under implicit social conventions concerning disclosure, risk-taking, and consent that may not require explicit discussion of infection. Some contend, on libertarian or privacy grounds, that the government simply ought not to be regulating such behavior. Other commentators suggest that sexual interaction is simply too psychologically complicated and socially unsettling to be sensibly analyzed in the terms of culpability offered by criminal law.
Public health professionals have worried that designating such common behavior as criminal could add to the stigma and social risk of getting tested, educated, or treated. They fear that prosecutions, particularly if they involve use of public health records to document prior knowledge of infection, can rend the fabric of privacy and cooperation necessary to effective prevention. Although empirical support for this concern is weak, even a minor negative effect would outweigh the negligible benefits of criminalization for public health.
Research has largely discredited the belief that needle sharing is a social preference in favor of the view that it is a response to the scarcity of new, sterile injection equipment. This scarcity, in turn, is attributable to drug paraphernalia and needle prescription laws designed to prevent drug users from obtaining injection equipment. It is objectionable on principle, as well as counterproductive from a public health perspective, to deliberately prevent individuals from getting sterile syringes while prosecuting those same people for sharing unsterile ones.
Mistrust is the greatest obstacle to criminal law’s protection of sexual autonomy and public health. Many people are dubious of the motivation behind criminalization. Many gay men, for example, fear that HIV is used as an excuse to suppress gay sexuality. Moreover, the fact that criminalization initiatives tend to come from more conservative legislators, and are never systematically enforced, fuels suspicion that criminalization is really part of a larger struggle between social factions for normative dominance in matters of sexuality. Sexually-transmitted disease control policies have historically reflected and been a vehicle for the expression of competing social norms about sexual behavior and the status of women and minorities. On this view, criminalization of HIV is of a piece with laws prohibiting sodomy, or denying civil rights protection to gay men and lesbians.
The Behavioral Impact of Criminalization
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.
Criminalization in Practice
Prosecutors began charging people with HIV-related crimes early in the epidemic. Nearly all cases involved exposure to the virus, rather than its actual transmission. As many as one hundred prosecutions had been initiated by 1988, when the first reported decisions appeared. In that same year, the final report of the Presidential Commission on HIV recommended that ‘‘HIV infected individuals who knowingly conduct themselves in ways that pose significant risk of transmission to others must be held accountable for their actions.’’ By 1999, there were approximately fifty reported cases and at least 200 prosecutions. Thirty states had passed HIVspecific criminal provisions, laws that varied enormously in the conduct they embraced and the penalties they imposed.
The cases fall into three main groups. The most numerous is comprised of instances of the allegedly deliberate use of HIV as a weapon to cause emotional distress or bodily harm. These cases, which have commonly involved biting or spitting, are notable for the high charges (including attempted murder) and long sentences meted out. A smaller group is made up of cases using HIV as a basis for more severe sentencing in cases of prostitution, rape, and child abuse. The third group is comprised of prosecutions, under the Uniform Code of Military Justice, of military personnel who disobeyed ‘‘safe-sex’’ orders to refrain from sexual contact without informing partners of their infection. No more than a handful of civilians have been prosecuted for isolated instances of unsafe sex without disclosure, and no reported cases involve needle sharing.
General Criminal Law
Depending on the actor’s state of mind, actual transmission of HIV by any means could be prosecuted as murder or manslaughter if it resulted in death of the exposed party. In practice, the long latency period of the disease, and old doctrines such as the rule that the fatal act must have occurred within a year and a day of the death to be prosecuted as a murder, may help explain why there is no reported case in the United States.
More commonly prosecuted is the act of exposing someone else to HIV. Available charges include reckless endangerment, assault, assault with a deadly weapon (or aggravated assault), and attempted murder. Reckless endangerment requires proof that the actor placed another at risk of serious bodily harm with conscious disregard of the risk. An assault is established if the actor is proven to have knowingly or purposefully engaged in conduct likely to transmit HIV. Some courts have allowed prosecution for aggravated assault or assault with a deadly weapon on the theory that HIV, or some body part containing HIV, is a weapon. Attempted murder requires a showing that the defendant purposely or knowingly deployed HIV as a weapon of homicide.
Both proponents and opponents of criminalization have been critical of the current approach of the criminal law to HIV cases. Proponents worry that bad actors get off too easily. The long course of the disease makes prosecuting actual transmission as murder impractical. Cases of exposure are also said to be hard to prosecute. A minority of courts have refused to analogize HIV to a deadly weapon, or have ruled that one or two sexual contacts are simply not risky enough to place another at the kind of risk prohibited by assault. Numerous commentators have pointed to a supposed difficulty of proving an intent to harm, particularly where, as the Supreme Court of Maryland ruled, proof of infection alone is not sufficient to establish the defendant’s intent to do harm.
Critics worry that both intent and risk are poor tools for assessing HIV cases. They note convictions in numerous assault and attempted murder cases involving very low risk acts like spitting, biting, and throwing infected body fluids. In such cases, and potentially in cases involving voluntary sexual activity, the unacceptability of the risk to jurors can skew their assessment of the likelihood of harm. Critics also worry about the effect of race, class, and the stigma of HIV on the decision-maker’s assessment of the defendant’s intent. Convictions of biters and spitters for attempted murder are seen as proof that judges and juries can ascribe a homicidal intent to a person with HIV even where the chosen weapon was practically incapable of causing death.
Concerns about the inappositeness of general criminal law has long led commentators from across the spectrum of opinion to prefer laws specifically defining culpable conduct among people with HIV, but positive legislation has brought neither clarity nor consistency. Many statutes deal only with specific modes of risk creation, such as blood donation or prostitution. Those that address sexual behavior more generally vary in the state of mind and acts addressed, as well as on important issues such as whether condom use or other safe sex practices can be considered in defense.
Two examples illustrate the range of provisions. California’s law, one of the narrowest, covers only unprotected sexual activity carried out with the specific intent to infect the other, and states that knowledge of infection alone is not sufficient to satisfy the intent requirement. Idaho’s law covers any transfer or attempted transfer of any body fluid, body tissue, or organ to another by a person who knows of his or her infection or any symptom of infection. ‘‘Transfer’’ includes ‘‘engaging in sexual activity by genital-genital contact, oral-genital contact, analgenital contact,’’ without regard to the riskiness of the act or even the use of a condom. Thus in Idaho, a person who has oral sex using a condom but without informing the other is liable to up to fifteen years in prison, whereas the same conduct is not covered by California’s law at all. Even without the condom and with a specific intent to infect, such conduct in California would be subject to a maximum of eight years. Absent systematic enforcement, the few prosecutions under these laws have depended upon a happenstance of detection under circumstances that led a prosecutor to charge the crime.
The ‘‘Extreme Case’’
Criminalization debate tends to be framed in terms of ‘‘willful’’ or ‘‘incorrigible’’ people who expose large numbers of partners to their infection. An example is NuShawn Williams, who had sex with dozens of women, many of them minors, after being told he was infected. Thirteen of the women were later found to have HIV. Mr. Williams, who is black, claimed to believe that white health officials had falsely told him he was HIV infected in order to discourage him from having sex with white women in the rural area where he was diagnosed. He denied any wish to hurt any of this partners. After public health authorities released his name, he was discovered in a New York City jail. He eventually pled guilty to charges of statutory rape and reckless endangerment and was sentenced to between four and eighteen years in prison.
Proponents of criminalization tend to point to his as the ‘‘easy’’ case: a man, tested and counseled, continues to have sex and infect underage partners with a conscious disregard of the risk. The biggest problem with his case was that he could not be charged with more serious crimes: none of his victims had died, or were likely to predecease Williams himself, while prosecutors in New York reportedly doubted they could prove he had the specific intent to kill required to make out the offense of attempted murder.
If one accepts that he believed he was infected and understood the risks, then perhaps Williams’s was an easy case. But this, opponents suggest, is just the problem: Williams’s demonic intent was assumed, not proven. For example, his ability to recall the names of most of his partners when questioned by health authorities, which could reasonably be read as proof of fondness and concern, was interpreted by more than one commentator as malignant sexual scorekeeping. For criminalization critics, it is Williams’s race, class, and incongruity with his rural setting that made him the ‘‘easy’’ case, and not a basic difference between him and other infected people.
Public health programs prevent HIV through the systematic deployment of interventions designed to change the behaviors that pose the highest risk to the population. Although criminal law is sometimes a useful public health tool, as against HIV it has been applied to a small number of randomly identified cases to punish and deter wrongdoing through action taken against individuals deemed morally culpable. Neither theory nor experience supports the belief that criminal penalties can reduce the rate of HIV’s spread.
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