The Criminalization of HIV: Time for an Unambiguous Rejection of the Use of Criminal Law to Regulate the Sexual Behavior of Those with and at Risk of HIV

Abstract:     
Throughout the HIV epidemic, criminal law has been invoked to deter and punish sexual transmission. The public health community has not favored the enactment of criminal laws specifically targeting people with HIV, nor endorsed the application of general criminal laws to HIV - but neither has it taken a vigorous stand against them. Meanwhile, governments continue to adopt HIV-specific criminal laws, and individuals with HIV continue to be prosecuted under general criminal law around the world. This comment argues that criminal law cannot draw reasonable, enforceable lines between criminal and non-criminal behavior, nor protect individuals or society from HIV transmission. In the protection of women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so.

Keywords: human rights, sexual freedom, public health

Working Paper Series