Criminalization as a Policy Response to a Public Health Crisis

13 Pages Posted: 18 Apr 2013 Last revised: 5 May 2015

Date Written: April 1, 1994


Without doubt, issues surrounding HIV disease require thoughtful, direct intervention by federal, state, and local governments. These issues, however, are enormously complex. In order for our policy-makers to construct and implement an effective policy response, they must first commit themselves to that goal. When faced with the politically risky and intellectually challenging tasks of developing responses to our nation's crises, our policy-makers often opt for politically safe and intellectually easy approaches that result in over-reliance on criminal law. In an effort to combat HIV/AIDS, for example, policy-makers have increased arrests and prosecutions under existing laws, have created new crimes, and, where the activity is already criminalized, have increased the sentences.

Nearly half the states have adopted statutes, some of them very broadly worded, making it a felony to knowingly engage in activity that might expose another to HIV. In a number of states without such specific statutes, prosecutors have employed traditional criminal laws to prosecute those with HIV/AIDS. For example, in one Texas case, an HIV-positive man who spit on a prison guard was convicted of attempted murder and sentenced to life in prison. Focusing on the use of criminal law as a weapon against HIV/AIDS, this Article addresses the question whether the use of criminal sanctions is an effective or appropriate way to combat HIV/AIDS.

Keywords: HIV, AIDS, criminal justice, rational basis

Suggested Citation

Strader, Kelly, Criminalization as a Policy Response to a Public Health Crisis (April 1, 1994). John Marshall Law Review, Vol. 27, No. 435, 1994. Available at SSRN:

Kelly Strader (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
213-738-6753 (Phone)
213-738-6698 (Fax)


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