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The Criminal Justice System and Health Care$
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Charles A. Erin and Suzanne Ost

Print publication date: 2007

Print ISBN-13: 9780199228294

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199228294.001.0001

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Should We Criminalize HIV Transmission?

Should We Criminalize HIV Transmission?

Chapter:
(p.225) 13 Should We Criminalize HIV Transmission?
Source:
The Criminal Justice System and Health Care
Author(s):

Rebecca Bennett

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199228294.003.0013

This chapter analyses the criminalization of disease transmission by considering whether the convictions we have witnessed, since 2003, for reckless transmission of HIV during consensual sexual intercourse constitute an appropriate legal response. Judgments in rulings in 1998 establish a legal duty upon HIV-positive persons to disclose their HIV-status before engaging in activities which are considered to pose a high risk of transmission of the virus. It is argued that while reduction of the incidence of HIV transmission is a clear public health goal, the threat of prosecution will not necessarily lead to a reduction in risky behaviour, and criminalization actually runs the risk of being counterproductive in this area. The retributive aim of criminalization is then scrutinized. It is concluded that attempts to quantify the level of moral wrong in each case is fraught with difficulty, and often inappropriate, and that the criminalization of reckless sexual transmission of HIV should be resisted.

Keywords:   HIV/AIDS, Offences Against the Person Act 1861, reckless disease transmission, grievous bodily harm, public health, punishment, informed consent, harm, risk

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