Criminalising HIV Transmission: Punishment Without Protection

Posted: 4 Feb 2010

See all articles by Widney Brown

Widney Brown

International Secretariat, Amnesty International

Johanna Hanefeld

Health Policy Unit, London School of Hygiene and Tropical Medicine

James Welsh

affiliation not provided to SSRN

Date Written: November 1, 2009

Abstract

Allegations of the reckless or intentional transmission of HIV raise challenging questions about how states can best address a disease which is transmitted primarily through behaviours that both states and community “police” in different ways. This paper argues that in the rare cases in which someone engages in specific behaviour with the intent to infect another person with HIV, existing laws such as laws against battery are sufficient to allow for the application of the criminal law. It discusses three key points: the potential consequences of new laws criminalising the transmission of HIV, why vague laws criminalising the knowing transmission of HIV fail to meet key requirements of criminal law and are an abuse of the state’s policing power, and thirdly, the growing inclusion of such laws within sexual offences legislation. Laws criminalising the transmission of HIV risk bringing within the scope of legal sanction people living with HIV who are acting in ways that do not merit punishment and may as a result of prosecution face adverse human rights consequences.

Keywords: HIV/AIDS, human rights, criminalisation, criminal law

Suggested Citation

Brown, Widney and Hanefeld, Johanna and Welsh, James, Criminalising HIV Transmission: Punishment Without Protection (November 1, 2009). Reproductive Health Matters, Vol. 17, No. 34, pp. 119-126, November 2009, Available at SSRN: https://ssrn.com/abstract=1543804

Widney Brown (Contact Author)

International Secretariat, Amnesty International ( email )

London EC1R 4RE
United Kingdom

Johanna Hanefeld

Health Policy Unit, London School of Hygiene and Tropical Medicine ( email )

United Kingdom

James Welsh

affiliation not provided to SSRN ( email )

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