The criminalization of HIV and the significance of knowledge: a comparative study

Abstract

Throughout history, epidemics have been endemic to the human experience.1 Medical epidemics can cause both fear and panic among citizens around the globe,2 as can be evidenced by the approaches taken for venereal disease in the past and the Human Immunodeficiency Virus (HIV) in the present. Legal intervention for HIV and other sexually transmitted infections demonstrate how criminalization can be used as a tool to reinforce existing stigmas that separate the sick from the healthy by establishing a moral link between sickness and unlawfulness, especially in matters where sexual conduct is a factor.3 The spheres of public health and criminal law are both aimed at the protection of public welfare and safety in their attempt to neutralize harmful elements in society, whether such harm is evidenced by a disease-causing biological agent or the reckless conduct of individuals.4 The enquiry into the suitability of criminal law as a method of addressing the problem of HIV transmission was necessitated by an awareness of scientific and medical progress in HIV treatment. Currently, criminal law is applied in dealing with HIV transmission in South Africa, and little cognisance is taken of scientific and medical knowledge. South Africa has endorsed the recommendations made by the United Nations to utilise existing criminal laws in the event that it needs to be applied to cases of HIV transmission.5 This study acknowledges the application of criminal laws where HIV transmission occurs as a result of the accused person’s intentional act or omission. The law applicable to HIV transmission in South Africa and certain states in the United States of America (United States) is discussed. The study serves to indicate that, whether general or HIV-specific criminal law is imposed, criminal laws cannot contain HIV transmission, but only serve to particularly address harm suffered