Evaluating the Impact of Criminal Laws on HIV Risk Behavior, Zita Lazzarini et al., 30 J.L. Med. & Ethics 239, 239 - 253 (2002)

This article by Zita Lazzarini, Sarah Bray, and Scott Burris analyzes whether laws criminalizing HIV exposure are effective tools for preventing the spread of HIV/AIDS in the United States and concludes that criminal law is not effective in preventing the transmission of HIV or encouraging behaviors known to reduce the risk of exposing others to HIV. In fact, such laws and prosecutions may actually undermine public health messages meant to curb HIV rates.

Across the United States, general criminal laws, public health laws, HIV-specific exposure laws, and sentence enhancements for HIV-positive persons have been used to prosecute and penalize individuals for allegedly exposing others to HIV. At least 25 states have public health disease transmission statutes that could be used to prosecute HIV exposure cases. And 32 states have HIV-specific statutes that prohibit conduct on the part of people who have tested positive for HIV that may or may not expose others to HIV. Prosecutions under HIV-specific statutes as well as general criminal laws have in a number of instances lead to imprisonment for behaviors that have, at best, a remote possibility of HIV exposure or transmission (ie: spitting and biting).

According to the authors, criminal theory relies on the idea that criminal laws can protect against the spread of disease through three main mechanisms: 
1) deterrence from high-risk behavior due to fear of legal repercussions;
2) support of a social norm against high risk behavior; and
3) incapacitation of those who engage in high-risk behavior through imprisonment or removal from society.

The authors find that each of these mechanisms fails to fulfill its promise when it comes to preventing exposure to and transmission of HIV. The authors argue that criminal law cannot be appropriately applied to the majority of cases of alleged HIV-exposure which occur within the normal bounds of acceptable social interactions – such as consensual sex or needle sharing. The activities outside those bounds – such as non-consensual sex – are already illegal and therefore it is not effective to have an HIV-specific statute to deter people's actions. Meanwhile, in the case of the incapacitation argument, incarceration does not remove the possibility of spreading HIV; sex continues behind bars, where typically there are no condoms available and an increased risk of sexual assault.

The data and analysis completed by the authors suggest that criminalization of HIV does not prevent future cases of infection but that such laws and prosecutions may, in fact, drive high-risk behaviors "underground" and contribute to the stigma already widely associated with HIV/AIDS. The criminalization of HIV fails to incorporate scientific reasoning in understanding how HIV is transmitted and prosecutes individuals based solely on their HIV status, regardless of whether their conduct resulted in HIV exposure, let alone transmission, or if they had an intent to expose others to HIV. For more information on HIV-criminalization, please visit our Positive Justice Project webpage.