Sherry F. Colb

The Criminalization of HIV Transmission: Is It Just?

Wednesday, October 13, 2010

The American Bar Association's AIDS Coordinating Committee has identified a trend, here and abroad, of imposing criminal sanctions in connection with the transmission of HIV. In a few days, the George Washington Elliott School of International Affairs will be holding a hearing to examine the implications of such criminal sanctions for HIV prevention. With topic headings such as "Public Health," "Law Enforcement," and "Rights of People Infected After Non-Disclosure," the day-long hearing promises to be fascinating and worthwhile.

This column will consider the question of criminalization along an overlapping but somewhat different dimension, by asking, Is criminal punishment a just response to the transmission of the virus?

The Evolution of AIDS

There was a period, not that long ago, when transmitting HIV to a previously-uninfected person was the equivalent of imposing a death sentence on that person. People infected with HIV would generally develop full-blown AIDS and die of an opportunistic infection, in terrible pain and distress, without hope of a cure. Currently, however, at least in developed countries, HIV-infection leads instead to a chronic health condition in which patients can live for many years by taking medicines that extend their lives and improve their health substantially.

In poor countries, by contrast, access to HIV drugs is quite limited, and patients continue to suffer and die of AIDS in shocking numbers. According to a web site that tracks AIDS statistics, for example, an estimated two million people died of AIDS in 2008, and fewer than half of the 9.5 million people in immediate need of AIDS drugs in developing and transitional countries will receive the drugs they need.

Despite the availability of medication in developed countries, moreover, even people with ready access to these drugs view the prospect of an HIV-positive diagnosis with dread. A chronic health condition that requires the ingestion of expensive, unpleasant drugs -- as the alternative to deterioration and death via an opportunistic infection -- is a serious threat to anyone's physical and psychological wellbeing. And for those who cannot tolerate, or fail to respond to, the drug cocktail, HIV infection can remain a death sentence.

Should Criminal Punishment Be Imposed for HIV Infection?

When a person who is infected with HIV ("Person A") has unprotected sex with an uninfected partner ("Person B"), Person A subjects Person B to a risk of infection (the size of which may be as high as 3%, or as low as under .1%, depending on whom one asks). With repeated exposure, the risk is greater, and therefore, condom use is generally recommended as a public-health measure, especially when partners are unable to assess each other's HIV status.

For Person A -- who knows he is HIV-positive -- to have unprotected sex with Person B, who does not know A's HIV status, is therefore irresponsible. Person A, in that situation, is needlessly and unjustifiably exposing Person B to the possibility of acquiring an infection that is debilitating and life-threatening at worst, and terrifying, burdensome, and traumatic, at best.

When one person knowingly subjects another person to an unjustified and real risk of death or substantial bodily harm, the first person can be subject to criminal penalties for that conduct. For example, if you take a loaded firearm and use it, with your eyes closed, to shoot a bullet out of your window, you will likely be engaged in committing a crime (reckless endangerment). And if your bullet hits someone who subsequently dies of her wounds, you might even be guilty of homicide.

We classify such behavior as criminal for a number of reasons, including society's need for incapacitation, deterrence, and retribution. By convicting you of a crime for shooting a gun out of your window, we enable the government to confine you in prison and prevent you from subjecting other potential victims to your future reckless conduct (incapacitation). We also teach others in society that if they are inclined to shoot guns out of their windows, they should hesitate to do so because they might otherwise end up in prison, like you (deterrence). In addition, we punish you for shooting out of your window because we believe that you deserve such punishment, because your conduct was wrongful and worthy of condemnation. (In other words, we as a society exact retribution). Simply classifying your behavior as a crime, moreover, expresses society's opprobrium for your having recklessly endangered others' safety.

Similarly, to classify knowing HIV-exposure through unprotected sex as a crime would rest on some or all of the rationales cited above for criminalizing reckless endangerment. We might want to confine the HIV-positive person in prison to prevent him from going on to infect others, as he has shown himself willing to do (incapacitation). We might also wish to deter other HIV-positive people from having unprotected sex in the future, out of a fear of criminal prosecution (deterrence). And finally, we might feel that the behavior in question is wrongful and worthy of condemnation and punishment (retribution), which its classification as a crime and its criminal prosecution would plainly express. The law might thereby, in theory, express society's anger at those who would needlessly and unjustifiably spread an infection and its accompanying misery.

Some Shortcomings of Criminalization

Despite these parallels, in considering the analogy between shooting a gun out of a window and engaging in unprotected sex, we can also immediately see some important differences:

First, shooting a gun out of a window is an inherently anti-social behavior. Even if the gun is not loaded, for example, anyone outside who sees someone pointing a gun and moving his hands as though to fire it is likely to panic. Such panic, even in the absence of any real risk of being shot, could lead people to run into traffic and get hit by a car, or to act in other unpredictable ways that could have terrible consequences. On the other side of the balance, the right to aim a gun out of a window and fire it is not generally viewed as an important or fundamental freedom.

Engaging in sexual relations, by contrast, is not inherently anti-social. Indeed, it is widely regarded as a fundamental part of a fulfilling adult life. There is, accordingly, nothing suspicious about two people having consensual sex, in the way that there is something very suspicious about a person shooting a gun out of a window. To determine that a sexual act between two consenting adults is not an expression of desire and affection, but instead an anti-social act by one against the other will therefore require further investigation.

Such investigation will include a determination, first, of whether the accused person is in fact HIV-positive; second, of whether the accused person knew at the time of unprotected sexual contact that he was HIV-positive; and third, of what he communicated to his partner about his status and his preference with respect to the use of a condom.

Thus, such investigation will necessarily be quite intrusive, requiring the disclosure of intimate matters, and would expose what are ordinarily personal facts (such as health status and whether a person went to get tested) to government scrutiny and unwanted publicity. At least some people who are subjected to this invasion of privacy, moreover, would be innocent -- perhaps because they did not know they were HIV-positive (and are now finding out in a most upsetting and traumatic way), or perhaps because they were open and honest with a partner who then chose -- even knowing of their status -- not to use a condom.

Other Serious Consequences of Criminalizing HIV Transmission

In addition to the harm involved in invading at least some innocent people's privacy, in the course of investigating the crime of HIV-exposure, one has to consider other consequences of criminalization.

On one hand, people who know they are HIV-positive might be more inclined, in the presence of such a criminal law, to use a condom and/or disclose their HIV status to all prospective sexual partners as a result. This would be one objective of criminalization and an apparently positive result.

On the other hand, many HIV-positive people do not know of their HIV status. For them -- particularly if they are in a high-risk group because they regularly engage in unprotected sexual activity with new people -- the best course for avoiding criminal liability might be continued ignorance of their HIV status. That way, if anyone accuses them of the crime in question, there will be no record of their undergoing testing and learning the result, or of their otherwise finding out that they are HIV-positive.

Such a result would be a travesty, in terms of public health. When people are HIV-positive and don't know it, they are not in a position to take advantage of medications that could prevent them from developing AIDS. They are also not equipped with the information that might have motivated many of them to use condoms. Denial is a powerful drive that already plays a role in deterring people from getting tested. (A similar phenomenon is at work among people who avoid going to the doctor for fear of learning that they do, in fact, have elevated cholesterol, high blood pressure, clogged arteries, prostate cancer, and other chronic conditions that are associated with a non-vegan diet, rather than with unprotected sex.)

Given people's existing reluctance to seek out what will likely be bad news, people will become only less inclined to get tested for HIV if such testing might open the door to potential criminal prosecution. The hope for deterrence, therefore, could prove perverse -- instead of deterring unprotected sex, it could deter HIV testing, an important weapon in the AIDS-prevention arsenal.

Imprisonment Is Not a Way to Prevent the Spread of HIV

What about the incapacitation of those who are HIV-positive and willing to have sex with unprotected partners? One answer to this suggestion is that incarcerating a person who is HIV-positive does not prevent the spread of HIV. Sadly, because prison rape is such a frequent phenomenon in the United States, the odds are good that someone infected with HIV in prison will spread that infection (and will not be able to use a condom, even if he would have liked to have done so).

A second answer is that people engaged in consensual sex outside of prison do best to assume that a partner is HIV-positive and to use protection accordingly. The best way to stop Person A from spreading HIV, in other words, may be a campaign to encourage all potential partners to use a condom, rather than wait for self-disclosure from Person A. Incarceration, rather than protecting the public, could give people a false sense of security that they are now "safe" from the infection.

Retribution Is Not An Appropriate Criminal-Justice Objective In a Typical HIV-Transmission Case

And then there is retribution -- another possible goal of the criminal-justice system. Readers might ask, Doesn't someone who knowingly infects another person with HIV through unprotected sex deserve to be held accountable?

In some situations, the answer is yes. There are undoubtedly cases in which an HIV-positive person deliberately infects other people with HIV, out of hatred or despair or some other motive. Such a person, who intentionally inflicts grievous harm on others, does arguably deserve to be punished.

Such cases, however, seem likely to be the exception rather than the rule. Most people who have unprotected sex do so for one or more of the following reasons: (a) they -- and perhaps their partners as well -- enjoy sex more without a condom; (b) they -- and again, perhaps their partners too -- have suddenly found themselves wanting to have sex, and they do not have a condom readily available; (c) they feel embarrassed to interrupt a sexual liaison with talk of condoms, perhaps because they are not very experienced or have not figured out how to incorporate such conversation into a romantic encounter; (d) they do not fully understand HIV transmission, and they believe that a condom might not be necessary; or (e) they continue to be in denial about their HIV status or mistakenly believe that if their viral load is not detectable, then transmission is not an issue.

For such people, their culpability is in greater question, and retribution may therefore not be an appropriate response to their behavior. Under these circumstances, the great cost of frightening people away from being tested (and being simultaneously educated about HIV and its transmission) should therefore perhaps be considered prohibitive.

An Analogous Circumstance: Punishing Alcohol- and Drug-Addicted Pregnant Women

In thinking about HIV transmission, it is useful to consider a similar phenomenon among drug-addicted pregnant women -- the continuing use of drugs and alcohol during pregnancy. Such use, as a public health matter, is a problem, because embryos and fetuses exposed to these substances in utero are likely to develop a variety of serious deficits, including fetal alcohol syndrome (FAS). In responding to this problem, one could imagine criminalizing the use of alcohol by pregnant women and, in fact, some jurisdictions have taken a criminal-law approach to women who use illicit drugs during their pregnancies.

Such approaches, however, are considered foolish by many people across the political spectrum regarding reproductive choice. Those who support women's autonomy and equality argue that pregnant women must not be subject to greater criminal risk than any man would ever have to face. And those who oppose abortion and view the growing fetus as a person entitled to protection, oppose criminalizing alcohol and/or drug use during pregnancy for a very different reason: Prosecuting pregnant women for drinking or using drugs will frighten women away from seeking help with their addictions and will accordingly harm the intended beneficiaries -- the unborn. If seeking medical help risks criminal prosecution, then women will likely remain addicted, fail to seek help, and perhaps even seek abortion to avoid creating evidence against themselves by giving birth to an afflicted child.

Pregnant women who use drugs and alcohol are generally not trying to harm their developing babies, just as HIV-positive people who have unprotected sex without announcing their HIV-status are probably not trying to make other people sick. In each case, people are pursuing their own drives in a counterproductive way. Thus, if we treat each situation as evidencing a public-health problem, rather than a criminal-justice problem, we stand a better chance of intervening with education and assistance to help both the victim and the "perpetrator" become healthier, more responsible, and better able to cope with and contain the realities of a serious medical condition.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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