Journal of Social Welfare and Family Law 23(4) 2001: 441–457
    
    Taking the blame: criminal law, social responsibility and the sexual transmission of HIV
    Matthew Weait
    Lecturer in Law, The Open University
    
    Abstract: Traditional criminal law scholarship in the eld of offences against the person fails adequately to problematize core concepts, such as responsibility, harm and causation. This article considers different ways in which we might think about such concepts, by exploring questions relating to responsibility for the sexual transmission of HIV. It is argued that the complex meanings associated with HIV transmission are inadequately captured if we think of it simply as a corporeal harm in icted on one person by another, and that lawyers should be open to alternative interpretations of the harm which transmission represents. Keywords: AIDS, crime, HIV, liability, responsibility, transmission Introduction One of the most important matters with which criminal lawyers are concerned is that relating to the attribution of responsibility. Put simply: who, under which conditions, should be criminally liable for what? Using a case study – the sexual transmission of HIV – this article argues that the conventional approach to answering these questions is, at least in certain respects, unduly restrictive. While the necessity of analysing the law as it is in fact applied in the courts remains an important project, this is not enough. One of the obligations of criminal legal scholarship, and of teaching, is surely to challenge the way in which we understand the categories and modes of argument deployed in determining responsibility, and to explore new ways of conceptualizing and understanding this. This challenge can be met in two ways. The rst, which may perhaps be characterized as ‘critical exegesis’, seeks to locate the law within a framework of values and to evaluate the extent to which there is a match, or t, between the two. The extent to which the law falls short of, or expresses, those values then provides a basis on which the law may be criticized. There have, over the last decade or so, been a number of authors who have adopted this approach in
    Journal of Social Welfare and Family Law ISSN 0141-8033 print/ISSN 1469-9621 online © 2001 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/09649060110079837
    
    442
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    their discussions of criminal law. Perhaps the exemplar is Andrew Ashworth, whose Principles of Criminal Law has, in a relatively short period, become a foundational text for undergraduate students of the subject (Ashworth, 1999 ). He rightly points out that the traditional texts of criminal law have tended to devote relatively little attention to the ‘rightness or wrongness’ of criminalizing particular conduct, and have been more concerned with identifying the conditions and scope of liability. In contrast, part of his purpose is:
    to identify some principles that may tell for or against making some conduct criminal, and to argue that some reasons are good and some bad. Although it is true that the frontiers of criminal liability are not given, but are historically contingent, it remains important to strive to identify the interests that warrant the use of the criminal law and to re ne notions such as harm which play so prominent a part even in political discussions of these questions. (1999: 23–4)
    
    There is, then, within the approach adopted by Ashworth an explicitly normative agenda, one which centres on the idea that before conduct may legitimately be criminalized, some principled justification is necessary. Thus (depending on one’s own particular view ), it is legitimate for the state to proscribe that conduct which offends against, for example, the principles of individual autonomy and collective welfare (subsumed by Ashworth within a principle of minimum criminalization) or social defence. Similarly, the legitimate range of criminal law may be determined by reference to such general principles as non-retroactivity, maximum certainty and the strict construction of penal statutes. This way of discussing the criminal law has many advantages, principal among which is that it provides the person wishing to make sense of its disparate rules and principles, with a coherent analytical framework informed by the liberal political values articulated in the law itself. Paradoxically, however, the approach may be criticized for doing just that. For in seeking to articulate a framework of values against which to critique the law, the foundational categories and assumptions which make up the law itself are left relatively undisturbed and uncontested (Norrie, 1993). The question of whether we should criminalize those who transmit HIV to others in a sexual context for the act of transmission 1 provokes, I think, just such a disturbance. And exploring the contours of that disturbance provides us with a second approach to understanding the way in which law’s (and lawyers’) assumptions both limit the range of interpretations which may be placed on human behaviour, and reproduce a socially inadequate approach to responsibility. Thinking about HIV/AIDS HIV/AIDS2 has, in less than two decades, become a complex social phenomenon. It has become so through diverse and ever-proliferating interrogation – by scholars in the elds of history (Fee and Fox, 1988; Grmek, 1990; Berridge, 1996; Haver, 1996 ), sociology (Kayal, 1993; Epstein, 1996 ), politics (Altman,
    
    Criminal law and transmission of HIV
    
    443
    
    1986, 1994 ), philosophy (Almond, 1990; Düttmann, 1996 ) and cultural theory (Crimp, 1988; Boffin and Gupta, 1990; Patton, 1985, 1990; Watney, 1994; Erni, 1994, Waldby, 1996 ), by writers and artists (Crimp, 1990; Sontag, 1991 ), and – importantly – by those living and working with HIV/AIDS (Kramer, 1995; Moore, 1996; Yingling, 1997 ). As a result of such interrogation, our understanding of the meanings and experience of both illness and mortality, and of empowerment and survival, have been vastly enriched. There is, however, a notable gap in that literature, which explores the way in we should think about HIV/AIDS and its meanings. Although lawyers (both academic and practising ) have been active in writing about the practical legal dif culties those living with HIV/AIDS may experience and, to a lesser extent, the dif culties law has when confronted by those living with HIV/AIDS, there has been relatively little theoretical (as distinct from doctrinal) engagement by them. From one perspective, this is perfectly understandable. For many lawyers, HIV/AIDS has been and still is, to be viewed primarily as a condition which produces practical problems for those living with it and thus demands practical interventions and solutions (Haigh and Harris, 1990; Burris et al., 1993; Rubenstein et al., 1996 ). The role of the lawyer, seen in this light, is principally one of advisor and advocate – as a person in a position to assist those who, because of their HIV+ or PWA3 status, are confronted with discrimination. To the extent that lawyers have written about HIV/AIDS, their contributions have therefore tended to be concerned with identifying the legitimacy or otherwise of such discrimination, and of suggesting ways of challenging and seeking redress for it when it occurs. Of course, in the real world of HIV/AIDS and practical lawyering, the world in which people affected by HIV/AIDS do experience discrimination and censure and do need advice, representation and protection, this work is of fundamental importance. Indeed, the need to think through the relationship between HIV/AIDS and law in this way, at this level, has never been more important. But it is not enough. In addition to this mode of legal engagement we need to address other questions about what thinking about HIV/AIDS within law entails both for HIV/AIDS and for law. Doing this requires the problematic transition from thinking as a lawyer about HIV/AIDS to thinking about what it is to think as a lawyer about HIV/AIDS. Only from this perspective may we hope to understand what we, as lawyers, are doing when we engage with HIV/AIDS – when we construct HIV/AIDS as a problem for law, whether intellectually or in practice. This is dif cult. Not in the sense that the intellectual and analytical challenges its subject raises are substantial (although they are); rather, it is dif cult precisely because the very thought of treating the subject intellectually and analytically is one to which I nd myself resistant. When I re ect on HIV/AIDS it is not primarily as an academic lawyer that I do so. Certainly this role, which creates a particular ‘way of seeing’, has affected the way I think about the problems which HIV/AIDS poses for law; but it has not helped me either in my search to understand what the relationship between HIV/AIDS and law is or ought to be. In confronting these, more fundamental, problems I nd myself thinking not as
    
    444
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    a lawyer, but as a man whose understanding of what being gay means has been formed in the time of HIV/AIDS, as a man who has lost friends to AIDS, as a man who has friends living with HIV/AIDS, and as a man both fearful of, and also, in some sense emotionally and politically empowered by, HIV/AIDS. It is within this complex network of associations and paradoxes, and only within them, that I seem able to think about the space where HIV/AIDS and law connect. Criminal Law(yers) and HIV/AIDS With these prefatory thoughts in mind I turn to the substance of this article. As I indicated earlier, I am interested in how a training in law (whether of an academic or practical kind ), affects one’s thinking about, and understanding of, HIV/AIDS. I am interested in this because the way in which lawyers conceptualize AIDS is, I believe, central to the way in which the meaning of HIV/AIDS is constructed more generally. The privileged and powerful social space which lawyers occupy combined with the way in which they speak and write about AIDS – whether that be in the context of legal argument, judgement or critique – has a profound impact on public perceptions of the disease. Unlike other disciplines in which AIDS has been interrogated, law is one which directly underpins an institutional structure through which disputes about the rights and responsibilities of those who live with the disease are articulated. As such, it provides both a potent source and an authoritative framework for the public discussion of those rights and responsibilities. In order to explore the issues I have agged here, I am going to talk about one area in which lawyers have engaged with AIDS, and where their ‘way of seeing’ has had a profound impact on the way in which the illness is understood. That area is criminal liability for the sexual transmission of HIV. First, I look at the way in which the traditional lawyer imagines and represents the process and consequence of transmission and then I explore how imagination and representation distort the context and meaning of transmission in this context. I conclude by suggesting that, where HIV is transmitted during consensual sex, no good purpose is served by deploying the criminal law against those who infect others. Within the dominant liberal tradition of criminal law theory the transmission of HIV is constructed as conduct which raises certain practical problems, for which pragmatic solutions can be found. 4 A summary version of these problems, and of the solutions suggested by writers in this tradition, would run as follows. It would start with an assertion that there are occasions where transmission occurs, or, according to some, where the risk of transmission arises, which are such that the intervention of the criminal law is justified. This justification is premised on the assumption that the transmission of HIV, or risking its transmission, may, on those occasions, amount to a public wrong. This general justification, which centres on the harm which transmission represents, is then further categorized as an offence against the person, as an offence which violates the victim’s bodily autonomy or integrity. Just as with
    
    Criminal law and transmission of HIV
    
    445
    
    a kni ng or bullet wound, viral transmission amounts to a suf ciently adverse interference with the rights a person has in their body that, provided other necessary conditions are satis ed, it warrants condemnation and censure. These other conditions, which form the next part of the traditional analysis, are rst, that the accused can be proved to have transmitted the virus (the condition of causation ) or placed the victim at risk of infection; and second, that the accused was suf ciently culpable at the relevant time (the mens rea condition ). If all these conditions are satis ed, so the inexorable logic of criminal legal doctrine runs, the accused is guilty of an offence and, absent of a recognized defence, may legitimately be punished. This reasoning is familiar to us all; it follows the simple (and simplistic) equation: blame plus harm equals crime. The problem which lawyers are exercised by is what, precisely, is the offence that has been committed when transmission, or the exposure of someone to the risk of transmission, occurs? There is no doubt in their minds that something worth punishing has happened; but unless the conduct can be squeezed into one of the established categories of liability, it cannot be punished without the introduction of a new offence (Dalton, 1993: 245–50). So onward they march, undaunted. What about murder? In principle, if it can be shown that the death of the victim was caused by AIDS, and that the victim would not have died of AIDS but for being infected with HIV by the accused, and it can be established that the accused intended to kill or cause serious bodily harm, then the accused will be guilty of murder. But charging this offence poses enormous problems in those cases where infection occurs as the result of sexual contact between the parties. Not only may AIDS manifest itself many years after infection, during which period the person may have had multiple sexual encounters with others also resulting in HIV transmission, but even if it can proved that X was the cause of Y’s death, it is generally extremely difficult to prove the intention necessary to obtain a conviction. It may also be, of course, that the accused has died, or is too ill to stand trial by the time the case comes to court. So if not murder, then perhaps attempted murder? Again, it will be dif cult to prove the requisite intention; and the same problems arise for other possible offences. Those de ned in terms of bringing about a consequence (death, or injury ) raise significant evidential dif culties, even if intention or recklessness – the typical mental states which must be proved – are established. The answer, so some argue, is to frame an offence in terms of endangerment (Smith, 1991 ). This is what some US jurisdictions have done, and where such offences exist, it means that it is not necessary that transmission be proved (thereby eliminating the causation problems) – simply that the accused exposed another to the risk of infection. 5 Of course this form of offence also raises dif culties. In the majority of common law jurisdictions, including England and Wales, there can be no conviction for an offence against the person framed in terms of exposure to risk, unless the accused was aware of the risk of injury – was subjectively reckless. But, so the traditionalist (who becomes increasingly conservative with every blind alley he enters) argues: why should the accused person’s knowledge of their HIV positive status matter? If they are in fact HIV+,
    
    446
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    and they do expose another to the risk of infection, are they not suf ciently culpable to warrant punishment? The answer, of course, is to adopt an objective test of recklessness such that those who ought to know they might expose another to the risk of infection, and did in fact so expose them, can be convicted (unless they can prove that they took adequate precautions ).6 For such commentators, the self-knowledge of the accused is irrelevant – they should have known better. The question arises then – precisely who should know better? Well, not all of us to be sure. Not all of us ought to assume that we expose others to the risk of infection when we engage in conduct which carries the risk of infection – the heterosexual Caucasian female who has only had vaginal and oral sex with apparently heterosexual and Caucasian men has, according to this line of argument, no reason to assume that she might be infected (unless, of course, she is a sex worker) and it is wrong to assume that she ought to have been aware of the risk. The same line of reasoning applies to the Caucasian heterosexual male. But these privileged categories of ignorance do not extend to those who should indeed know that they might be infected – the gay or bisexual man, the IV drug user, or the person from those parts of the world (most notably SubSaharan Africa), who must indeed know that they may be infected and whose ignorance is therefore culpable. Members of these categories, by virtue simply of their membership, may legitimately be held accountable through the coercive and immanently discriminatory apparatus of criminal law.7 What I have described here is, of course, a paradigmatic line of reasoning and it is true that not all those who have discussed criminal liability for HIV transmission have gone this far. Some do retain a commitment to subjective tests of liability and argue that only those who know that they are HIV+ should be convicted if it is proved they exposed others to the risk of infection (Bronitt, 1994). There are also those who adopt an even narrower line and argue that endangerment offences run the risk of being either under-inclusive (e.g., imposing liability in the context of unsafe sex but not IV drug use ), or overinclusive (in that they frequently fail to distinguish between high and low risk conduct ) (Dalton, 1993: 250–1). But even those who argue that liability should be limited to those who in fact transmit the virus, wrestle with whether it should apply only to those who do so intentionally, or whether reckless transmission is a suf cient basis for conviction and punishment. The point is, that whatever limits or extensions to liability are advocated – whatever breadth and scope it is thought legitimate to give to the criminal law in this area, there is a dominant and seemingly irrepressible mode of thinking about HIV transmission, which casts it as simply another kind of bodily harm (albeit a problematic one, given existing offence categories) and which therefore invites legal intervention and a punitive response. Thinking differently about HIV transmission It is not my intention here to argue that there are no cases in which the transmission of HIV can never amount to conduct which warrants such a response. The person who lls a syringe with blood they know to be infected
    
    Criminal law and transmission of HIV
    
    447
    
    with HIV and who uses it as a weapon against another is no different from the person who stabs with a knife or shoots with a gun. 8 In such circumstances, the person responsible must surely be subject to criminal sanctions. 9 However, this is not the only context in which those alleged to have transmitted HIV, or to have exposed others to the risk of transmission, have been prosecuted or convicted. There are other more common contexts, lawful in themselves, during which transmission occurs, where it has been thought legitimate to charge, prosecute and convict – to identify and proceed against an accused who has produced, through infection, a victim. And it is in these contexts, notably sexual intercourse, where the application of the mode of reasoning described here forces one meaning of transmission, while ignoring others and, in doing so sustains the idea that it must, indeed, be a crime and should be treated as such. What is the process by which transmitting a virus during sexual intercourse becomes de ned as a wrong whose perpetrator ought to be punished? It starts, at one level, with the idea that the transmission of HIV to another, or engaging in conduct which risks transmission, is a harm of a kind recognized by the criminal law – to wit an offence against the person. It is easy to see how transmission may be represented in this way. We all know that HIV is a devastating virus, which attacks the immune system, rendering the host body susceptible to opportunistic infections that may lead to death. We also all know that, despite increasingly effective drugs, which can reduce the viral load in the body to a negligible amount (at least in the medium term), there is neither vaccine nor cure. Viewed in this way, as something which attacks our ability to defend ourselves, being infected with HIV is indeed disruptive to a bodily integrity we not only feel ourselves entitled to enjoy, but which is itself constituted through law. Viewed in this way, being infected with HIV is no different from being poisoned. And yet is this the experience of infection? It is so at the moment transmission occurs, or afterwards when one learns that one is HIV positive, or later still when one develops AIDS? Is HIV, which though transmitted in an instant, silently and beneath the skin, felt, as one feels a knife or a bullet? And is the knowledge that one is HIV positive felt as one feels the physical pain of being stabbed, punched or shot? Is the medical diagnosis that one now has AIDS felt in this way? Of course it is not possible to generalize about how those who have been infected experience the knowledge of infection, or the illness which it leads to. It is perfectly possible to object to this way of thinking about HIV infection, as having to do essentially with individual experience, rather than as a harm that can be objectively de ned as such by analogy with other offences against the person. It is as much a violation of bodily integrity, so many would argue, as a wound, a fracture, or an assault. But there is, I think, a case for putting the other view; that where transmission occurs in the context of sex, we should re ect on other ways of thinking about what the harm might be – not to accept uncritically the traditional analysis, which in my view fails abjectly to capture the various and complex meanings of HIV infection. Put generally, the approach advocated here, is one which
    
    448
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    resists the criminal legal imperative of taking conduct and dissecting it into various technical elements (such as actus reus, mens rea and causation ) and, if each is present, concluding that the conduct satisfies the conditions of a crime. Such a technical and decontextualized approach fosters the idea that crimes are simply the sum of their parts. Rather, I think that we should undertake a more critical dissection, one which involves an exploration of the broader concepts these elements represent – concepts such as harm, blame and responsibility. If, and only if, it is possible to establish that these are present, are manifest in the conduct, should we begin to think in terms of possible criminal liability and all that this entails. So let us reflect a little on the harm which transmission represents. Viral transmission occurs between bodies, and so the body provides an obvious focus for thinking about the wrong. It is something that happens to a body, through the agency of another body. One body leaks, the other absorbs and becomes a different body – an infected body; and the fact of that infection, which is conceived as the in iction of a corporeal harm, is what the criminal law and those who would apply it take as their starting point. Something has been done to the body of the ‘victim’, something but for which that body would have remained essentially the same. But it is not the enduring difference which infection produces, or its meaning, with which the criminal law concerns itself, at least not formally. What matters, at the level of criminal conduct, is the fact of infection, the fact of transmission. The criminal law isolates the wrongful conduct, the moment of infection, constitutes that as its centre of attention, and draws all subsequent attention to that moment. For law, time stops. The legally relevant moment is the moment of differentiation, not the consequences or experience of differentiation (nor indeed, in any socially meaningful sense, the cause ). There is the time before transmission – the time during which the imagined future is one free of infection (where mortality is immanent, but denied ), and the time after, when the fact of infection delimits the future (where the immanence and imminence of mortality elide). And there is the present and instant moment of infection: an unfelt, unacknowledged moment, which marks the boundary between the two. This legally relevant moment is, of course, the least relevant in terms of the experience of infection. It may be years, if ever, before the harm, as de ned by law, becomes known to the person infected, during which time there is no experience of having been physically injured. Even when that knowledge is gained, through testing HIV+, it is hard to imagine that what is experienced at the moment of revelation is injury of a corporeal kind. There will be fear and anxiety, certainly – but these are responses and feelings, which are essentially forward-looking, not retrospective. There may also be feelings of betrayal, that the trust one had in a lover has been broken. In this sense, there will surely be hurt. But these incorporeal feelings – of time stolen, of a future damaged, of intimacy soured – which may more adequately re ect the harm experienced, are irrelevant in establishing whether an offence has been committed. That is nothing but a technical question turning on when and how transmission
    
    Criminal law and transmission of HIV
    
    449
    
    occurred, and on who was responsible (in the sense of its cause ). In rendering liability a technical question of this kind, the law forces us to imagine any wrong that may have been committed as essentially momentary, physical and complete. Why does this matter? Why ought it concern us that the law should ignore, occlude or deny the harm actually experienced as being relevant to liability? After all the theft of property with sentimental associations is no more theft than that of property to which the owner has no such attachment. And just as these differences of context and meaning may be re ected in sentencing, why should the feelings of anxiety, fear and betrayal, which ow from the knowledge that a lover has infected us with HIV, not be acknowledged at the stage of determining appropriate punishment? My answer is that in the case of HIV transmission, the wrong (to the extent that one can call it that) is not the fact of infection. Criminalizing those who have transmitted the virus on the basis that they have caused grievous bodily harm,10 administered a noxious thing, 11 or (under the proposed Offences Against the Person Bill (Home Of ce, 1998 )) caused serious injury, means that the context in which transmission happens and its meaning for the person infected are rendered irrelevant. This matters, because (as I shall argue) it is precisely the context of transmission and the meaning of infection, which determine whether it is legitimate to think of it as a public wrong at all. I have suggested that it is inappropriate to conceptualize the transmission of HIV during sex as a corporeal harm and that if we are to think of it as a harm, we should acknowledge that it is the present experience of betrayal, and the anxieties and fears for the future of the person infected, which more accurately captures the essence of that harm. While a traditional lawyer might have dif culties with this reasoning and argument, he/she might very well agree that the psychological consequences of the knowledge of infection could constitute a harm comprehensible to the law and so form the basis of an offence. It is true that recent developments in the criminal law of this country appear to have acknowledged such harm explicitly, e.g. the willingness of the appeal courts to sustain the convictions of those charged with causing psychological illness through silent or menacing ‘phone calls,12 or recent ‘stalking’ legislation. 13 However, these developments still manifest an essentially corporeal focus, and operate in contexts appropriately characterized as something aggressive done by one person to another. This would – I suspect – be as far as any agreement between my argument and the traditionalist would go. For although we might both be able to accept such harm as being a wrong, we would disagree about whether it is legitimate to attribute responsibility for that harm to the person who transmits HIV during sex. The problem is that, just as the mind set and the discourse within which criminal lawyers operate mean that they tend to see HIV transmission as a physical event, as an offence against the person, or – from a feminist theoretical perspective (Lacey, 1998 ) – as a violation of bodily autonomy or integrity, so they understand responsibility for transmission as belonging to the person who, being infected, causes another to become infected. It is quite natural for them
    
    450
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    to do so. Lawyers think in binary pairs in which things either are or they are not, in which people do things or have things done to them. Within criminal legal discourse especially, a binary model of active and passive is assumed in which crimes are committed by one against another. So it is that lawyers imagine the essential crime which HIV transmission represents (however it is named) as the causing of an adverse change in the body of another. In such a model, the person producing the effect is responsible for the change and the person changed – damaged, injured, however one wishes to characterize it – is simply a passive object, a receptacle, a victim. This common sense approach to causation, adopted in the common law generally and in criminal law in particular (Hart and Honoré, 1985) is, of course, not immune to criticism. Ryu, for example, in an early response to Hart and Honoré’s work, argues that when we engage in questions of causation, we should be sensitive to the fact that we do so with a purpose in mind (in this context, the attribution of criminal responsibility) and that our approach to cause and effect will inevitably be in uenced, if not determined by this (Ryu, 1958 ). More recently, Gerald Dworkin has pointed out that when considering questions of responsibility:
    there is a need to select or decide on the importance of various factors, and of the relationship of this decision to policies, values, purposes, prior knowledge, etc. These judgments of responsibility are precisely that – judgments. They select some factors from a range of candidates and claim these are the signi cant, illuminating, morally noteworthy ones to x the responsibility. (Dworkin, 1981: 27)
    
    In those cases in which HIV is purposively deployed as a weapon, the active/ passive model in which X is (and ought as a matter of judgement ) to be held responsible for causing an effect in Y, rings true – it seems adequately to re ect what takes place.14 But when the virus is transmitted in the course of sexual intimacy (understood as sexual conduct in which neither party is concerned purposively to harm the other), the distinction collapses. Transmission occurs between people engaged in such intimacy. It may be that the person infected would not be so, but for the virus having been transmitted to them, and in the physical sense in which cause and effect are understood, the person transmitting the virus is responsible for the subsequent infection. But this physical model, which law mirrors and legitimates as a mode of conceptualizing responsibility, ignores – or rather forces ignorance – of other ways of seeing and understanding. Put simply, it prevents us from thinking about responsibility for transmission as shared between the parties. It is tempting to argue that transmission would not have occurred but for the act of the accused; indeed criminal law requires that transmission be cast in this way. But it is also possible that we reject such a model in favour of one which centres instead, on responsibility having to do with the conduct of those between whom transmission takes place. It is possible, and I would argue, desirable, because it is a model which draws attention to the fact that each person who becomes HIV positive as the result of sexual activity, participates in the process and fact of infection. HIV is not
    
    Criminal law and transmission of HIV
    
    451
    
    airborne, a person who is HIV positive is not contagious. HIV is only transmitted during sex if the people involved fail to take precautions against transmission. And I emphasize both people here. If a person agrees to participate in the kind of sex which carries the risk of HIV infection (and most sex is safer rather than safe) and is infected, we must question whether it is right to attribute sole responsibility to and punish the person who transmits the virus, when that would not have happened but for the other person’s willingness to accept that risk. We must question the extent to which they are passive in the process of transmission and the extent to which they ought to be characterized as innocent victims. We must question whether it is always, irrespective of context, right to assert that it is something which is done to them. There will be those who reject this way of thinking, of suggesting that if there is a harm, it is one for which the person experiencing it must bear equal responsibility. One of the grounds on which it would be rejected would be the fact that people do not necessarily enter into sexual relationships with all the information they need in order to decide what kind of sex they are prepared to have. It is all very well to say that we are each responsible for our sexual and physical health, but the fact is that people keep things from us, or tell lies. How then can it be said that the person who consents to sex which carries a risk of infection, is responsible for their subsequent infection, and how then can it be said that a wrong was not done to them? Well, I think it can and must be said. Consider the high-pro le case which drew attention to this problem in the mid-1990s – the case in which Jeanette Pink, an Englishwoman living in Cyprus was infected by her Cypriot lover. The evidence was that Mr Georgiou knew his HIV+ status and either failed to disclose that fact to Ms Pink, or lied to her. On those facts it was easy to present her (especially in the xenophobic English tabloids ) as a woman wronged and Mr Georgiou as a monster meriting punishment. It can certainly be argued that Mr Georgiou should have told Ms Pink about his HIV+ status, or at the very least refused to engage in sex which carried the risk of transmission. But the cause of her infection, if we resist the physicalist/legalist mode of analysis, was a failure on his part to talk, his unwillingness to tell the truth, or to refrain from unprotected sex; and on her part her willingness to trust him, or her failure to insist that precautions were taken. There was no allegation on her part of rape; she did not assert that she had not consented to the intercourse, or that lack of information vitiated her consent. It is not fanciful, I think, to insist that while he may have transmitted the virus to her, this would not have happened but for his lack of communication, honesty and willingness to adapt preferred sexual practices, or her failure to doubt him or assert herself. As the slogan, which became the hallmark of the radical AIDS activism promoted by ACT UP in New York in the early days of the epidemic had it: Silence = Death. Some people – possibly most people – instinctively feel that failure to disclose HIV status prior to sex, which carries the risk of transmission, or lying about that status, necessarily tips the balance of fault against the person who in fact transmits the virus; and that this in itself justifies criminalization. This requires brief comment. Criminal lawyers, just as they think of causation, harm
    
    452
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    and responsibility in ways which seem to me not to capture the complex meanings of and reasons for HIV transmission and AIDS, also have a very narrow conception of fault. Earlier in this article I outlined the way in which the traditional lawyer constructs HIV transmission, or exposing someone to the risk of HIV transmission, as an offence. Part of that construction involves identifying the fault elements of the offence. Bar a reactionary few, most commentators seem to subscribe to the idea that it should be necessary to prove an intention to transmit, or that the accused himself was aware that there was a risk of transmission. Both of these fault criteria depend on the accused person’s knowledge that he was HIV+. A person who is in fact HIV+, but does not know this, cannot be held responsible on either of these grounds. He cannot intend to transmit the virus, he cannot be subjectively reckless in respect of its transmission. Once again, the only relevant knowledge for law is that which the person accused of transmitting HIV has of himself. If he knows he is HIV+, he is responsible and can in principle be held criminally liable for the harm he causes. If he is ignorant, despite the fact that he still causes the harm, he cannot be held liable. What is more, in law it matters not whether he lies about his status, or simply fails to disclose it. There may be a moral distinction between the two, and one which might be reflected in the degree of punishment, but it is not a legally relevant distinction. I consider this way of thinking about the relevance of knowledge, and its bearing on responsibility, as inadequate. Certainly I believe that those who know they are HIV+ have a responsibility towards others; but I believe just as strongly that those who have no such knowledge bear the same responsibility, both to others and to themselves. To put it bluntly, I have a choice. I can assume that I and my partner or partners may be HIV+ (whatever they say) and only engage in safer sex. Here, actual knowledge of HIV status is irrelevant, but the consequence is an elimination or minimization of the risk of transmission. Or I can assume that I am HIV–, and that everyone I have sex with (and with whom they have had sex) is or was at the relevant time HIV–. I can assume, as Jeanette Pink did, that when my partner tells me he is HIV–, that he is telling the truth (despite the fact that I know, from experience, that people are quite capable of lying, or of denial). I am perfectly free to make these assumptions and can choose to have sex, which may result in HIV transmission. But how dare I, if this is my approach and am infected, blame my partner – how dare I argue that simply because he knew his HIV+ status, he is the one who was at fault in any socially meaningful sense? I dare, because the law allows me to, because the law ignores my risk-taking, my irresponsibility and legitimates my gullibility. I dare, because in law, knowledge operates solely and narrowly as a basis for determining the fault of the person who is (in legal terms) responsible for causing the harm. There will be those who say that the way I have approached responsibility here is one which, by analogy, absolves those who abuse others, violently and/or sexually in domestic or other contexts. They will argue that it is an approach, which casts the blame on the spouse who tolerates violence from an abusive
    
    Criminal law and transmission of HIV
    
    453
    
    partner. It does not. My aim has not been to allocate responsibility, de ne harm, or determine causes. Rather, it has been to explore and problematize the way in which these core elements of criminal law doctrine are understood and deployed, and so force us to re ect on matters which – through the blinkered vision, which a conventional legal education fosters – we are often prepared to accept without question. Concluding observations I am aware, re ecting on what I have written here, that I risk coming across as someone unsympathetic to the plight of those who discover that they are HIV+, or who are diagnosed as having AIDS. Nothing could be further from the truth. My purpose here has not been to deny the very real experience of anguish and anger, which such people may feel, or to suggest that their feelings of outrage, hurt and anger should not be taken seriously. Nor has my purpose been to suggest that they do not sometimes feel wronged. Rather, it has been my intention to force a re ection on whether criminalizing the sexual transmission of HIV is an appropriate mode of acknowledging and legitimating those feelings, and to get us, as lawyers, to think about how the way in which we conceptualize wrongs generates and sustains the wider public perceptions of how they should be thought of and dealt with. These reflections assume a more than theoretical importance today. The Consultation Paper which accompanied the draft Offences Against the Person Bill (Home Of ce, 1998) drew explicit attention to the problem of HIV transmission and asked for comment on whether and, if so, to what extent, it should be criminalized. Among those who responded was the Terrence Higgins Trust (THT), Europe’s largest HIV/AIDS charity.15 For THT, and other HIV/AIDS organizations, HIV transmission is primarily a public health issue. What matters, in the larger scheme of things, is that the incidence and rate of transmission is minimized. Consequently, THT took the view that any legislation bearing on liability for HIV transmission should not have an adverse impact on attempts to limit the spread of the virus. The problem is, that the legislation proposed does not, on its face, limit liability to those who use HIV as a weapon. Rather, it provides that a person who intentionally causes serious injury (which includes disease) is guilty of an offence. It may prove practically dif cult, for evidential and other reasons, to get convictions where transmission occurs during sex, but it will not be impossible; nor would the proposed legislation prevent prosecutions being brought, with all the attendant publicity and prejudice that generates. Lastly, it is not far-fetched to suggest that an offence grounded in intention (which requires knowledge ) may provide a disincentive to people to discover their HIV status prior to entering into a sexual relationship – and if this was a consequence, it would have a grave impact on limiting the spread of the virus. The tabloid press thrives on victim stories, especially on those concerning victims who are wronged in love. Add to these stories photographs of such people emaciated and ill, set against ones taken when they were healthy, and
    
    454
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    they provide a sure incitement to public outrage and calls for punishment of the person who did this to them. Lawyers, above all others, must resist participation in this circus; but they must also re ect on their complicity in a system which allows it to happen, and enables the wrongdoing to be constructed, represented and legitimated in the way that it is. If my arguments are accepted, that the real harm of transmission lies not in a distant, unfelt, corporeal injury, but in the knowledge of transmission, and in its effects on the experience of the present and future of the person infected, then the proper response is tolerance, support and understanding. If it is accepted that the cause of infection, and the experiences which ow from it, are better thought of as the product of ignorance and silence than of a physical act, then the proper response is better education and a fostering of self-worth and individual responsibility. To focus simply on what offences may have been committed, as if transmission posed nothing but technical legal questions, is a response that ignores fundamentally important questions about the scope, content and use of criminal law. These are the questions we should feel obliged to address. References Alldridge, P. (1993 ) ‘Sex, lies and the criminal law’, Northern Ireland Legal Quarterly 44: 250–68. Almond, B. (1990 ) AIDS: A Moral Issue, Basingstoke: Macmillan. Altman, D. (1986 ) AIDS in the Mind of America, New York: Anchor/ Doubleday. Altman, D. (1994 ) Power and Community: Organizational and Cultural Responses to AIDS, London: Taylor & Francis. Ashworth, A. (1999 ) Principles of Criminal Law, 3rd edn, Oxford: OUP. Berridge, V. (1996 ) AIDS in the UK: The Making of Policy 1981–1994, Oxford: OUP. Bof n, T. and Gupta, S. (eds) (1990 ) Ecstatic Antibodies: Resisting the AIDS Mythology, London: Rivers Oram Press. Bronitt, S. (1994 ) ‘Spreading disease and the criminal law’, Criminal Law Review 21–34. Burris, S., Harton, L., Dalton, J., Miller, L., and the Yale AIDS Law Project (1993 ) AIDS Law Today: A New Guide for the Public, Yale, CT: Yale University Press. Crimp, D. (ed.) (1988) AIDS: Cultural Analysis, Cultural Activism, Cambridge, MA: MIT Press. Crimp, D. (1990 ) AIDS DemoGraphics, Seattle: Bay View Press. Dalton, H. L. (1993 ) ‘Criminal law’, in: S. Burris, L. Harton, J. Dalton,
    
    Criminal law and transmission of HIV
    
    455
    
    L. Miller, and the Yale AIDS Law Project (eds) AIDS Law Today: A New Guide for the Public, Yale, CT: Yale University Press. Düttmann, A. G. (1996) At Odds with AIDS: Thinking and Talking about a Virus, Stanford, CA: Stanford University Press. Dworkin, G. (1981 ) ‘Taking risks, assessing responsibility’, Hastings Center Report, October, 26–31. Elliott, R. (1997 ) Criminal Law and HIV/AIDS: Final Report, Montreal: Canadian HIV/AIDS Legal Network. Epstein, S. (1996 ) Impure Science: AIDS, Activism and the Politics of Knowledge, Berkeley, CA: University of California Press. Erni, J. N. (1994) Unstable Frontiers: Technomedicine and the Cultural Politics of ‘Curing’ AIDS, Minneapolis, MN: University of Minnesota Press. Fee, E. and Fox, D. M. (eds) (1988 ) AIDS: The Burdens of History, Berkeley, CA: University of California Press. Grmek, M. D. (1990 ) History of AIDS: Emergence and Origin of a Modern Pandemic, Princeton, NJ: Princeton University Press. Haigh, R. and Harris, D. (eds) (1990 ) AIDS: A Guide to the Law, London: Routledge. Hart, H. L. A. and Honoré, T. (1985 ) Causation in the Law, 2nd edn, Oxford: OUP. Haver, W. (1996) The Body of this Death: Historicity and Sociality in the Time of AIDS, Stanford, CA: Stanford University Press. Home Of ce (1998) Offences Against the Person Bill, London: Home Of ce. Kayal, P. M. (1993 ) Bearing Witness: Gay Men’s Health Crisis and the Politics of AIDS, Boulder, CO: Westview Press. Kramer, L. (1995 ) Reports from the Holocaust: The Story of an AIDS Activist, London: Cassell. Lacey, N. (1998 ) Unspeakable Subjects, Oxford: Hart Publishing. Moore, O. (1996) PWA: Looking AIDS in the Face, London: Picador. Norrie, A. (1993 ) Crime, Reason and History: A Critical Introduction to Criminal Law, London: Weidenfeld and Nicolson. Patton, C. (1985 ) Sex and Germs: The Politics of AIDS, Boston, MA: South End Press. Patton, C. (1990 ) Inventing AIDS, London: Routledge. Rubenstein, W. B., Eisenberg R. and Gostin, L. O. (1996 ) The Rights of People who are HIV Positive, Carbondale, IL: Southern Illinois University Press.
    
    456
    
    Journal of Social Welfare and Family Law 23(4) 2001
    
    Ryu, P. K. (1958 ) ‘Causation in criminal law’, University of Pennsylvania Law Register 106(6 ): 773. Smith, K. (1991) ‘Sexual etiquette, public interest and the criminal law’, Northern Ireland Legal Quarterly 42: 309–31. Sontag, S. (1991 ) Illness as Metaphor/Aids and its Metaphors, London: Penguin. Sullivan, K. M. and Field M. A. (1988 ) ‘AIDS and the coercive power of the state’, Harvard Civil Rights–Civil Liberties Law Review 23(1): 139. Waldby, C. (1996 ) AIDS and the Body Politic, London: Routledge. Watney, S. (1994 ) Practices of Freedom, London: Rivers Oram Press. Weait, M. (1996 ) ‘Fleshing it out’, in: L. Bently and L. Flynn (eds), Law and the Senses, London: Pluto Press, 160–175. Yingling, T. (1997) AIDS and the National Body, Durham: Duke University Press. Notes 1 I emphasize this because I am not concerned here with the question of whether transmission during the course of penetrative sex vitiates what would otherwise be a valid consent and so amount to rape (see Alldridge, 1993 ). I am concerned instead with the way in which we construct the wrong which HIV transmission itself represents. 2 I refer to HIV/AIDS as the broader phenomenon with which this essay is concerned. 3 The accepted acronym for Person With AIDS 4 An excellent bibliography of the relevant legal academic literature is to be found in Elliott (1997 ). 5 See, for example, Ill. Ann. Stat. Ch.38, paras 12–16.2 (Smith-Hurd Supp. 1990 ) (Illinois) and Idaho Code paras 39–608 (Supp. 1989) (Idaho). 6 Such is the argument of Smith (1991 ). However, in R v. Brown [1993] 1 2 AllER 75 Lord Templeman indicated that, in his view, the very taking of precautions against transmission was evidence of an awareness of the risk of infection. Such an arguably perverse approach, if followed by other members of the judiciary, would therefore be of little help to Defendants (Weait, 1996: 167 ) 7 For an excellent critique of this line of reasoning see Sullivan and Field (1988 ). 8 The language of weaponry, is, however frequently deployed in relation
    
    Criminal law and transmission of HIV
    
    457
    
    to HIV transmission generally (Waldby, 1996 ), and is so powerful a metaphor that it can result in people being charged with weapons offences when the only ‘weapon’ is their body (see, for example, United States v. Moore 846f 2d 1163 (8th Circuit 1988 ) in which the HIV positive accused was charged with ‘assault with a deadly or dangerous weapon’ after biting two correctional of cers in a federal medical centre). 9 In 1995 a woman was charged under s.23 of the OAPA 1861 with administering a noxious thing, and with attempted grievous bodily harm after allegedly injecting her lover with a syringe lled with HIV contaminated blood. At the time of her conviction on the latter charge her lover was continuing to test negative for HIV antibodies, but the results were inconclusive because of the time taken between exposure and detectable infection. The defendant was sentenced to two years’ imprisonment and the judge recommended deportation. See Horsnell, M. ‘Jilted woman ‘injected lover with HIV infected blood’’ (The Times, 8/11/95, p.3). 10 Section 18 Offences Against the Person Act 1861. 11 Section 23 Offences Against the Person Act 1861. 12 R v. Ireland and Burstow [1998] AC 147. 13 Protection from Harassment Act 1997. 14 This could include cases in which a person consciously deploys his or her body as that weapon. 15 I was one of the people responsible for drawing up THT’s response. However, the views in this essay are mine and should not be taken to represent the Trust’s position.

Add Comment

To add a comment, you need to login or signup (you can signup without leaving this page)