Is It Really a Risk? The Parameters of the Criminalisation of the Sexual Transmission/Exposure to HIV
| Author | David Hughes |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| DOI | http://doi.org/10.1177/0022018320908668 |
| Subject Matter | Articles |
Article
Is It Really a Risk? The Parameters
of the Criminalisation of the Sexual
Transmission/Exposure to HIV
David Hughes
Teesside University, UK
Abstract
This article considers whether there is a rationale for criminalisation of the sexual transmission
and exposure to HIV by reviewing the harm principle. The article then provides a comparative
jurisdictional analysis of transmission and exposure in three particularised jurisdictions: Eng-
land, Canada and the US. It will be established that few jurisdictions truly consider the risk of
serious harm, and thus lack a theoretical foundation for criminalisation. A comparison of
relational judicial precepts will follow the discussion of extant law in each country. The final
part of the article proposes a bespoke new legislative framework that will criminalise certain
types of transmission and exposure.
Keywords
HIV, criminal, exposure, comparative law, England
Introduction
The contemporary position in the reviewed jurisdictions has shifted to criminalise transmission and
exposure to the virus. Prima facie, the criminalisation of transmission and exposure to HIV corresponds
to the harm principle, as Feinberg has stated that actual harm, and situations that pose a risk of serious
harm are a sound basis for state interference.
1
The focus of this article is to assess the parameters of such
criminalisation, to ensure that only the most culpable acts, which here it is suggested include reckless
transmission and intentional exposure, should be criminalised. To achieve this goal, the first part of this
piece of work will set out the position of transmission and exposure from a theoretical perspective. This
section will present a discussion of the harm principle: this it is argued is the prerequisite for assessing
culpability based upon exposure respectively. The harm principle is chosen for the foundation of
criminalisation as the significan t risk of serious harm is a term that has been used throughout the
Corresponding author:
David Hughes, School of Social Sciences Humanities and Law, Teesside University, Middlesbrough TS1 3BX, UK.
E-mail: D.Hughes@tees.ac.uk
1. Joel Feinberg, Harm to Others: the Moral Limits of Criminal Law (OUP, Oxford 1984) 11.
The Journal of Criminal Law
2020, Vol. 84(3) 191–210
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DOI: 10.1177/0022018320908668
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jurisdictions.
2
This rationalisation provides a sound basis for delineating the parameters of criminalisa-
tion and provides an approach that has not been previously explored in this manner within the context of
HIV.
The article will then assess the extant position of transmission and exposure by individually evaluat-
ing the legislative and judicial precepts within England, Canada and the US.
3
In England, the current
approach is that individuals will be prosecuted for transmitting or exposing another to the virus.
4
The
latter circumstance does not accord to the harm principle. The Canadian jurisdiction allows for crim-
inalisation of transmission and exposure to the virus. There will be criminal sanctions, within Canada, if
the defendant’s conduct poses a ‘significant risk of serious harm’ that has a ‘realistic possibility of
transmission of the virus’.
5
The test promulgated by the Supreme Court appears to accord to the harm
principle, however, it will be demonstrated that the judiciary places too much emphasis upon the
magnitude of harm without due consideration of the probability of harm, as this approach includes less
risky behaviour. The final section of this part will assess the various American legislative methods that
criminalise exposure to the virus. It will be argued that the present situation within the number of
American jurisdictions is devoid of principle as there is no real consideration of what will equate to a
harm under Feinberg’s definition of the term.
The penultimate part of this article critically compares the approaches that have been adopted in the
aforementioned countries with emphasis placed upon the harm principle. It will be shown that there are
similarities and significant differences in the jurisdictional approaches. The final element of this work
will propose a new statutory footing that will not only criminalise transmission but also prohibits certain
risky activities that expose an individual to the virus. This provides a legislative framework that accords
to Feinberg’s harm and utilises appropriate elements from the three jurisdictions within this analysis.
The Harm Principle and the Risk of Harm
The leading proponents of the harm principle have defined harm to facilitate criminalisation when the
sanction prevents harm to others.
6
It is relatively undemanding to construct a case for criminalising
conduct when HIV has been transmitted: there is a clear indication of harm.
7
The harm principle is not
restricted to actual harm, as Feinberg submits that the risk of serious harm is also within its ambit.
8
Exposure to HIV in contrast to transmission is more problematical to reconcile. This is made more
onerous a task when sympathy can be attributed to an individual who may be convicted of exposing
another to the virus. This empathy can begin to erode when the advertence of the defendant, and the
activity that that person has partaken in, is taken into consideration. If the activities of the infected
individual are of a high risk
9
to the recipient, then this is a justification for criminalising that conduct.
There appears to be no rationale as to why certain types of conduct should evade a criminal sanction. The
criminalisation of this type of behaviour is further reinforced by a defendant intending to transmit the
virus.
2. For example: R v Cuerrier [1998] 2 SCR 371; Iowa Code § 709D (2018).
3. A comparative analysis is suited for reform proposals. The US was chosen for this purpose as a number of states already have
legislation that specifically addresses the criminalisation of HIV. Canada deals with transmission/exposure via the general
criminal law, and is suitable for comparison purposes. Thus, the comparison is based upon one jurisdiction that has specific
legislation, and the another that has utilised the general criminal law.
4. R v Dica [2004] QB 1257; R v Rowe [2018] EWCA Crim 2688.
5. R v Cuerrier (n 2); R v Mabior 2012 SCC 47.
6. John Stuart Mill, On Liberty (John Gray and GW Smith (eds), Routledge London 1991); Feinberg (n 1).
7. Margo Kaplan, ‘Rethinking HIV-Exposure Laws’ (2012) 87 Indiana LJ 1517, 1523.
8. Feinberg (n 1) at 11.
9. For types of activity and risk see: Centres for Disease Control <https://www.cdc.gov/hiv/basics/transmission.html> accessed 15
January 2020.
192 The Journal of Criminal Law 84(3)
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