Bareback Sex in the Age of Preventative Medication: Rethinking the ‘Harms’ of HIV Transmission
| DOI | 10.1177/0022018320974904 |
| Author | Alex Powell,Chris Ashford,Max Morris |
| Date | 01 December 2020 |
| Published date | 01 December 2020 |
| Subject Matter | Articles |
Article
Bareback Sex in the Age
of Preventative Medication:
Rethinking the ‘Harms’
of HIV Transmission
Chris Ashford
Northumbria University, UK
Max Morris
Kingston University London, UK
Alex Powell
Oxford Brookes University, UK
Abstract
The experiences of people living with HIV have been transformed over recent years. Advances
in medical science have made the virus a manageable chronic condition, while eliminating the
risk of onward transmission for those with access to treatment, something referred to as TasP
(treatment as prevention) or U¼U (undetectable equals untransmissible). More recently, the
availability of PrEP (pre-exposure prophylaxis), alongside PEP (post-exposure prophylaxis),
through the NHS has created the conditions for condomless sexual encounters to take place
without the fear of HIV transmission associated with previous decades. Despite this, the
criminal law has continued to frame HIV in terms of personal responsibility and bodily
autonomy within the dominant narratives of danger, disease, and out-dated science. Doctrinal
law has failed to keep pace with social and scientific change. Therefore, in this article, we
provide a re-examination of the criminal issues relating to HIV transmission within this new
landscape, arguing that it necessitates a shift in attitude, policy and doctrine. We specifically
argue that HIV transmission does not meet the appropriate harm threshold to constitute GBH
and that if criminal law is ultimately about preventing or regulating harm, the ongoing crim-
inalisation of HIV transmission is counter to that aim.
Keywords
Bareback sex, grievous bodily harm, HIV, PEP, PrEP, responsibility, risk, TasP
Corresponding author:
Chris Ashford, Faculty of Business and Law, Northumbria University, Newcastle upon Tyne, NE1 8ST, UK.
E-mail: chris.ashford@northumbria.ac.uk
The Journal of Criminal Law
2020, Vol. 84(6) 596–614
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0022018320974904
journals.sagepub.com/home/clj
Introduction
It is during another global pandemic—that of COVID-19
1
—that the UK Government has announced signif-
icant changes to the availability of HIV pre-exposure prophylaxis (PrEP)
2
in England,
3
moving from limited
availability via ‘trials’,
4
to routine availability for the general population via the National Health Service
(NHS).
5–7
As the search for effective responses (e.g. vaccines) to one pandemic continues to be the focus of
policymakers and scientists, PrEP has become more widely available in efforts to prevent new HIV diagnoses.
This sits alongside pre-exposure prophylaxis (PEP)
8
and treatment as prevention (TasP)
9
as an important
pharmaceutical tool which has the potential to halt the transmission of HIV.
The move to make PrEP available on the NHS has the power not only to transform the statistics on HIV
transmission in England and Wales but also to re-shape the criminal law pertaining to HIV transmission.
10
Such developments arguably have applicability for healthcare and legal systems well beyond the UK as
governments and NGOs seek to utilise law to shape behaviours, manage decision-making and risk-taking.
1. The World Health Organization defines COVID-19 as ‘the infectious disease caused by the most recently discovered cor-
onavirus. This new virus and disease were unknown before the outbreak began in Wuhan, China, in December 2019. COVID-
19 is now a pandemic affecting many countries globally’. See ‘Coronavirus Disease (COVID-19)’ Who.int (2020) <https://
www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses> acces-
sed 28 October 2020.
2. The PrEP campaign group Prepster describes the treatment as: ‘a way of preventing HIV infection by taking a pill on an
ongoing basis before sex and continued after sex. It’s taken by someone who doesn’t have HIV, to prevent them from getting
HIV. The PrEP pill is an antiretroviral drug—the same type of pill taken by someone who already has HIV to treat HIV’. See
‘Prepster’ Prepster (2020) <https://prepster.info> accessed 28 October 2020.
3. Availability was confirmed in Wales in June 2020. See Reiss Smith, ‘HIV Activists Celebrate as Wales Confirms Life-Saving
HIV Drug PrEP Will Be Rolled Out on the NHS’ PinkNews—Gay News, Reviews and Comment from the World’s Most Read
Lesbian, Gay, Bisexual, and Trans News Service (2020) <https://www.pinknews.co.uk/2020/06/30/prep-wales-roll-out-com
missioned-available-hiv-drug/> accessed 28 October 2020.
4. Local authorities are the responsible commissioner for HIV prevention services in England under reg 6 of the Local
Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013.
5. See ‘HIV Prevention Drug PrEP “To Be Made Available on the NHS This Year”‘ The Telegraph (2020) <https://www.tel
egraph.co.uk/news/2020/03/15/hiv-prevention-drug-made-available-nhs-year/> accessed 28 October 2020.
6. The March announcement on PrEP was followed by some confusion about a potential step back from this position but it
became clear that the rollout would be slightly delayed by Covid-19 but would still happen. See Jamie Wareham, ‘Life-Saving
HIV Drug PrEP on NHS Delayed amid Coronavirus Pandemic’ Forbes (2020) <https://www.forbes.com/sites/jamiewareham/
2020/06/05/life-saving-hiv-drug-prep-on-nhs–indefinitely-delayed-amid-coronavirus-pandemic/#3e3080f91416> accessed
28 October 2020.
7. On the legal battle to get to this point, see Alexander Maine, ‘Bareback Sex, PrEP, National AIDS Trust v NHS England and
the Reality of Gay Sex’ (2020) 23(8) Sexualities 1362.
8. Post-exposure prophylaxis is an anti-viral treatment that can be taken after someone believes they have been exposed to a risk
of HIV transmission. See ‘Is Prep Different From PEP?—Prepster’ Prepster.info (2020) <https://prepster.info/ser(vices/ser
vice-2/> accessed 28 October 2020.
9. This refers to the use of antiviral treatment by someone who is HIV positive to stay healthy and to also reduce the risk of
transmitting HIV. See, generally, ‘Tasper!Find Out More About Treatment as Prevention!| Prepster’ Prepster (2020) <https://
prepster.info/tasp/> accessed 28 October 2020.
10. The focus of this article is on the law in England and Wales, but the criminalisation of HIV debate is global. Problematic tropes
of ‘the disease spreader’ intersect with issues of race, class and shame. See Joey L Mogul, Andrea J Ritchie, and Kay Whitlock,
Queer (In)justice: The Criminalization of LGBT People in the United States (Beacon Press, Boston 2011) 34–36; Libby Adler,
Gay Priori: A Queer Critical Legal Studies Approach to Law Reform (Duke University Press, Durham 2018) 68. On global
legal responses to HIV more generally, see James Chalmers, Legal Responses to HIV and AIDS (Hart Publishing, Oxford
2008). The legal debate has not been limited to criminalisation, but also to healthcare rights, eg Alexandra Juhasz and
Theodore (Ted) Kerr, ‘Who Are the Stewards of the AIDS Archive? Sharing the Political Weight of the Intimate’ in Angela
Jones, Jospeh Nicholas DeFilippis and Michael W Yarbrough (eds), The Unfinished Queer Agenda After Marriage Equality
(Routledge, Abingdon 2018); Maine (n 7); Matthew Weait, ‘The Healthcare Rights of People Living with HIV and AIDS’ in
Chris Ashford and Alexander Maine (eds), Research Handbook on Gender, Sexuality and the Law (Edward Elgar, Cheltenham
2020).
Ashford et al. 597
To continue reading
Request your trial