The intersection of disease transmission and criminal law

CNN carried the story of Nick Rhoades, a HIV-positive young man who is serving time for not disclosing his HIV status to a partner.

Amongst all of the opposition to criminally charging people who transmit HIV, almost nothing was said about it not harming the victim.  There is plenty of ink spilled over the discriminatory result (i.e. African-American men have HIV at a higher rate than the Caucasian and Asian populations, so these laws disproportionately affect them), public policy rationals (these laws allegedly create a disincentive to be tested), and the harshness of the penalties compared to similar crimes.  Very little, however, is said about the result of transmitting HIV to another person: death (or a life of antiretrovial drugs, hoping to stave off death).

The penalty for transmitting HIV to another person should be akin to that of manslaughter or second-degree murder.  (Transmission cannot be charged as murder or manslaughter until the victim is dead, by which point the perpetrator has likely also died from the disease; thus, perpetrators need to be charged with a different crime.) If the mandatory minimum sentencing for HIV transmission is much higher than that of other reckless or intentional killings, the proper response is to lower the minimum sentence, not scrap the law entirely.

(Continued below the fold)

Unlike most murders, however, a person who knowingly risks transmitting HIV to his partners is endangering many people – not one – and is likely to continue to endanger his partners.   Thus, the long sentences associated with transmitting HIV reflect a higher risk of recidivism, not animus towards people on the margins of society.

These laws were not developed out of animus, but to account for the deadly and repetitive nature of knowing or reckless transmission of HIV.  No one has the moral right to unilaterally decide for his partner that sex with an infected person is acceptable.  Charging the person with a sex crime (as some people, such as Rhoades, are) misses the point: the harm is in putting another person’s life at risk.

The laws could be modified to distinguish between lack of disclosure and actual transmission, such that a person who failed to disclose his health status would not be subjected to the same penalties as someone who infected another individual.

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Filed under Bioethics, Law, Miscellanea

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