A Look At The Debate Over HIV Transmission Crimes

ast week we covered an unusual sex crime prosecution for intentional HIV transmission. HIV transmission charges sometimes appear in sex crimes cases where a defendant is HIV-positive. Today, we will return to the topic to examine an ongoing debate regarding whether these prosecutions serve a useful purpose.

Supporters argue that criminal penalties are necessary to deter knowing and reckless transmission to sex partners. They ground this argument in two separate justifications. First, some point to the public health importance of containing HIV transmission. A second justification exists in the desire to punish those who deliberately or negligently infect innocent partners. Disturbing cases like the current Maryland prosecution add some heft to these arguments.

But critics raise two counter arguments. Some epidemiologists specializing in HIV insist that punishment has no deterrent effect on transmission rates. These experts view transmission prosecutions as essentially useless from a public safety perspective.

Other critics point out that criminal remedies already exist to prosecute reckless or intentional harms. For example, prosecutors could potentially use assault statutes to pursue intentional transmission. Thus, some observers say that special statutes have a stigmatizing and discriminatory effect by subjecting HIV-positive defendants to higher penalties.

These two criticisms come together in a third: some people argue that transmission charges actually harm public safety. By penalizing defendants only for knowing transmission, the statutes may discourage people from getting an HIV test. In other words, these prosecutions simply pile on top of the already enormous stigma associated with HIV, creating a strong incentive to ignore a likely infection.

This debate has only intensified in recent years with vocal arguments on each side. An upcoming criminal prosecution here in Maryland may shine a brighter spotlight on these issues in the coming months.

Source: The Baltimore Sun, “Edgemere man faces rarely used HIV transmission charges,” Jessica Anderson, Sept. 9, 2012