Punishment and criminal HIV infection

A recent case in SA raised some questions for me about justice and stigma, and how – in some cases, like HIV – the two can’t be easily separated. That they relate at all was surprising enough.

In my latest at Big Think, I try to outline some dimensions some might be overlooking in their need to see “justice done”.

It’s interesting to note how often people clamour for justice, for something to be done, when a situation arises and yet, how the demand for justice is its own downfall. Or rather unmitigated hysteria. For example, we know that criminalising sex work and drugs – at the very least marijuana – has little basis in reason, but plenty of basis in popularity. As Plato hinted at, laws in democracies are made to be popular not right.

But when justice becomes synonymous with revenge, with knee-jerk moralistic action – rather than thought-out, evidence-based approaches that will help everyone in the society, that will reduce suffering – then we’re no longer talking about justice. We’re talking about mob mentality.

I’m reminded of a powerful scene in The West Wing where – no spoilers – a character’s child is harmed in some way by bad people. The character trolls another in saying they should revise whether capital punishment should be nation-wide and mandatory (for certain crimes). The second character points out that what the other man will do as a father, versus what he should do as a servant of the people, are in conflict; the law is there to be the voice of the latter, for the benefit of all, not a tool to benefit the heightened emotions of a grief-stricken father. What use is law when its wielded by the loudest, the strongest, the most grief-stricken?

This is one of the reasons I consider capital punishment to be immoral – to some degree – since it has no retraction possibility; it’s always closing the door on backtracking our possible mistakes. This doesn’t mean I think capital punishment is the worst punishment – I think, along with John Stuart Mill, that (life) imprisonment can be “a living tomb”, especially as we know reports out of places like Guantanamo, as the incredible Molly Crabapple showed.

Anyway, justice as always is complicated and we mustn’t let our desire for it overshadow its actual purpose in being effective.


  1. says

    Good to see the link posted here where there are comments. I was one of the people that went up to you after your talk today. I realise I didn’t introduce myself then. Anyway, there was an issue you didn’t mention in your post that I was wondering about.

    HIV is a very serious disease but it’s certainly not the only STD and there are many other deadly, transmissible diseases, like TB. Even a less serious disease can be an inconvenience (and, for example, stealing is a crime, whether it’s a car or a pair of shoes). I know in Japan the culture is that someone with a cold where’s a surgical mask to prevent infecting others.

    So, if we’re going to punish someone for infecting another person with HIV, which does make sense, shouldn’t we then also punish anyone that doesn’t take precautions when they are sick? Or should it perhaps be exclusive to cases where infection was deliberate? Of course even if it’s not deliberate it could still be negligent.

    • left0ver1under says

      There’s also the issue of herpes and vaginal childbirth, of the risk to the baby. And you mention TB – Russian prisons turned into an incubation factory for the disease, leading to untreatable strains.

      We can’t demonize people for having diseases, but we also can’t pretend every situation is the same. Herpes, chlamydia, HPV, HIV/AIDS and others all have different consequences for the inflicted.

      We definitely do need different rules and laws for different diseases that people pass on, but not based in bigotry or ignorance.

  2. Tsu Dho Nimh says

    So, if we’re going to punish someone for infecting another person with HIV, which does make sense, shouldn’t we then also punish anyone that doesn’t take precautions when they are sick?

    You already can be jailed until declared non-infectious in any US state for certain diseases. Usually it’s for TB, but it was also used for typhoid carriers. Typically the diseases that qualify for that legal solution are those where the contagious person can look and feel “healthy”, so they are spreading disease as they walk around.

    Someone knowing they are HIV positive and deliberately choosing to have unprotected sex is like shooting into inhabited buildings … you KNOW you are putting other people at risk. And it’s not like TB, where just breathing and coughing is the problem.

    For some of the worst of the current diseases, such as ebola, the patient is too sick to be a public health threat, and the disease has a limited period of contagion. They don’t need to be jailed, they are in hopsital. If they survive, they aren’t spreading ti anymore.

  3. says

    Thirty five US states have laws criminalizing the transmission of HIV. In my state of Washington, for example, the relevant statute is RCW 9A.36.011:

    (1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:

    (b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance

    (2) Assault in the first degree is a class A felony.

    While the statute cites an “intent to inflict great bodily harm,” it has been interpreted — successfully — that knowing you are HIV positive and failing to inform your partner is itself assault in the first degree, even if you engage in safer sex and even if no actual exposure to the virus occurred. The maximum penalty for a class A felony is life in prison without the possibility of parole, or a fine of up to $50,000, or both.

    There is a Wikipedia article on Criminal transmission of HIV, which looks at laws in various countries.

    Those who are interested in decriminalization efforts in the US might want to look at http://seroproject.com/.

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