Criminalisation and Moral Responsibility for the Sexual Transmission of HIV

Burris S. and Weait M., (2012), Criminalisation and the Moral Responsibility for Sexual Transmission of HIV, Working paper prepared for the Third Meeting of the Technical Advisory Group of the Global Commission on HIV and the Law

Temple University Legal Studies Research Paper No. 2013-17

20 Pages Posted: 9 Aug 2012 Last revised: 19 Jul 2013

Scott Burris

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

Matthew Weait

University of London

Date Written: 2012

Abstract

The essay that follows is an effort to take on a narrow but important question in a serious, though limited, way. The question is whether there is a MORAL case for lifting primary responsibility for Human immunodeficiency virus (HIV) prevention from the shoulders of those who know they are infected. The question is important because, for many people, it feels so obviously right to require those with HIV to accept this responsibility that punishing them as criminals if they fail to do so seems a natural, logical and entirely fair next step. As far as we can tell, objections to HIV exposure or transmission laws to date have rested on practical, rather than moral concerns. We will ask whether there is a good moral case to be made against criminalisation.

There are two important things we will not do. We will not address the use of criminal law to deter or punish people who deliberately expose others to HIV with the aim of causing harm or with callous disregard of a significant risk of transmission. Like other commentators, we regard trying to harm others as wrongful and subject to prosecution regardless of the weapon used; our only concern in such a case, from the HIV perspective, is that a defendant not be punished more harshly only because the chosen weapon was the virus3 The second thing we will not do is attempt a moral analysis that is culturally comprehensive. The people of the world have developed many powerful systems of moral thought. We investigate our moral question within just one, the Western tradition of deontological ethics and liberal political philosophy. Our purpose is not, ultimately, to define for all people and all places a morality of HIV exposure, but to test whether the case for assigning primary moral responsibility for HIV to the person infected is as strong as it is assumed to be.

Keywords: HIV, criminal liability, moral responsibility, sexual morality, Rawls, justice, criminalisation

Suggested Citation

Burris, Scott and Weait, Matthew, Criminalisation and Moral Responsibility for the Sexual Transmission of HIV (2012). Burris S. and Weait M., (2012), Criminalisation and the Moral Responsibility for Sexual Transmission of HIV, Working paper prepared for the Third Meeting of the Technical Advisory Group of the Global Commission on HIV and the Law; Temple University Legal Studies Research Paper No. 2013-17. Available at SSRN: https://ssrn.com/abstract=2126714 or http://dx.doi.org/10.2139/ssrn.2126714

Scott C. Burris

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

Matthew J. Weait (Contact Author)

University of London ( email )

Senate House
Malet Street
London, WC1E 7HU
United Kingdom

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