Self-Incrimination, Partner Notification, and the Criminal Law: Negatives for the CDC’s “Prevention for Positives” Initiative, David W. Webber, AIDS & Public Policy Journal (2004)

This article takes a critical look at the CDC's "Prevention for Positives" program, which encourages HIV-positive individuals to disclose their status to sexual partners by way of a third party. The article criticizes the program for its failure to address the ways it will interact with criminalization statutes and its lack of guidance to clinicians about their ethical and legal obligations with respect to working with law enforcement while participating in the CDC initiative.

Under the "Prevention for Positives" initiative, HIV-positive individuals voluntarily disclose their current and former partners to a third-party healthcare provider. State health department personnel then notify these parties of the individual's HIV status. At the outset, this article criticizes the program for its baseline assumption that the HIV epidemic results from and is perpetuated by people who know about their own infection and fail to disclose it to partners. However, the article's main criticism centers on the program's disregard for its implications concerning criminal law investigations. Many states have criminal laws punishing HIV-positive individuals for their failure to disclose their HIV status to partners. Participating in the CDC's program may result in revealing self-incriminating information to a state agency. Law enforcement also may play a heavy-handed role in these proceedings; indeed, the article gives examples of privacy regulations that make exceptions for law enforcement activity. The initiative may seriously damage the lives of HIV-positive individuals in its effort to notify people who may or may not have been affected by the individual's HIV status. Webber argues that knowledge of this side effect of potential criminal prosecution – to which individuals are ethically entitled -- is likely to deter participation and seriously undermine the initiative's success.

The article then suggests ways the CDC could have addressed these concerns. Though the article concedes that making patient participation voluntary helps limit self-incrimination, it notes that "Prevention for Positives" does not require that healthcare providers explain relevant state criminal law to its patients prior to their participation in the program. The article suggests other ways the CDC could deal with this problem, including limiting public health agencies' ability to work with, and share information with, law enforcement. It also contends that the initiative should provide guidance to clinicians and healthcare workers about how they should implement the initiative given that their patients could potentially be punished for participating. The article suggests that these modifications may improve the success of the program.