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

15 Pages Posted: 6 Aug 2008  

Scott Burris

Center for Public Health Law Research, Temple University - James E. Beasley School of Law

Edwin Cameron

High Court of the Republic of South Africa

Michaela Clayton

AIDS and Rights Alliance of Southern Africa

Date Written: August 6, 2008

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

Suggested Citation

Burris, Scott and Cameron, Edwin and Clayton, Michaela, 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 (August 6, 2008). Available at SSRN: https://ssrn.com/abstract=1189501 or http://dx.doi.org/10.2139/ssrn.1189501

Scott C. Burris (Contact Author)

Center for Public Health Law Research, Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-6576 (Phone)
215-204-1185 (Fax)

HOME PAGE: http://www.phlr.org

Edwin Cameron

High Court of the Republic of South Africa ( email )

Johannesburg
South Africa
27113328204 (Phone)

Michaela Clayton

AIDS and Rights Alliance of Southern Africa ( email )

ARASA Regional Office
53 Mont Blanc Street
Windhoek
Namibia

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