Criminal law, public health and HIV transmission: a policy options paper

This paper addresses the question of whether criminal laws and prosecutions represent sound policy responses to conduct that carries the risk of HIV transmission.

Individual cases,and accompanying media coverage, may prompt public calls for such a response. But there are few simple solutions to such a complex problem,and a rush to legislate should be avoided in favour of careful consideration.

To assist in the development of sound public policy, this paper:

• proposes some principles that should guide thinking about, and development of, law and policy on the question of criminal law and HIV/AIDS
• identifies a number of public policy considerations that states should take into account when making decisions about the use of the criminal law
• considers the alternative to criminalization presented by public health laws
• discusses if and how the criminal law might be justifiably applied, considering in particular:
  • whether HIV-specific legislation is warranted
  • which acts that transmit HIV or carry the risk of transmission could be subject to criminal sanctions
  • what degree of mental culpability should be required to impose criminal sanctions
  • concludes with recommendations to governments, police,prosecutors, judges and public health authorities regarding the appropriate use of criminal sanctions and coercive public health measures.

In developing policy regarding the use of criminal sanctions or coercive measures under public health legislation,government officials and the judiciary should be cognizant of a number of principles:

• the best available scientific evidence regarding modes of HIV transmission and levels of risk must be the basis for rationally determining if, and when, conductshould attract criminal liability
• preventing the transmission of HIV should be the primary objective and this, rather thanany other objective, should guide policy-makers in this area
• any legal or policy responses to HIV/AIDS, particularly the coercive use of state power, should not only be pragmatic in the overall pursuit of public health but should also conform to international human rights norms, particularly the principles ofnon-discrimination and of due process
• state action that infringes on human rights must be adequately justified, such thatpolicy-makers should always undertake an assessment of the impact of law or policy on human rights, and should prefer the ‘least intrusive’ measures possible to achieve thedemonstrably justified objective of preventing disease transmission.