Negligent or Willful Exposure or Transmission

Pages85-86

Page 85

The Issue

An individual who knowingly exposes an unknowing partner to HIV may negligently spread the virus without any malicious intent. A person infected with HIV may take precautions to prevent its spread, only to have those precautions fail due to his own negligence. Attaching criminal or other sanctions to individuals in these cases may be antithetical to public health objectives. Others, however, may willfully or recklessly attempt to spread HIV. In these cases, HIV-positive individuals may intentionally engage in risky sexual or drug-sharing behaviors to harm an unknowing partner. Alternatively, the individual may act in a reckless manner from which criminal or malicious intent may be presumed. Often some level of civil or criminal culpability is assigned to individuals in these cases, especially when exposure leads to transmission.

Legal and Policy Considerations

Laws and policies that criminalize negligent or willful exposure seek to deter individuals whose actions lead to exposure of others to HIV and potential transmission. The legal ramifications of exposing an uninfected individual to HIV differ depending on (a) intent; and (b) whether transmission of HIV occurs, although each element can be difficult to prove legally or epidemiologically.

Intent is tied to the type and severity of the offense and punishment. The intentional exposure of another to a communicable disease is deemed a crime in most jurisdictions under general criminal law (e.g., manslaughter, assault and battery, reckless endangerment, or attempts of each of these crimes). As noted by UNAIDS, addressing the relatively few numbers of cases of intentional exposure or transmission of HIV through general criminal laws is preferable to crafting STD-or HIV-specific offenses given the potential for targeted enforcement and discrimination. Also, HIV-specific criminal statutes may discourage voluntary testing and thereby counteract governments' prevention efforts. Still, some jurisdictions have created specific criminal sanctions for intentional HIV offenses.

Transmission of HIV is not always a necessary element of criminal charges or civil causes of action. Yet when transmission actually occurs, the severity of criminal charges or civil claims may be augmented. For example, willful exposure of HIV may result in a criminal charge of assault; willful exposure resulting...

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