Last 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
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