Friday, April 29, 2011
This article challenges the current legislative and scholarly approaches to HIV-exposure criminalization and proposes an alternative framework to address their flaws. Twenty-four states criminalize consensual sexual activities by people with HIV. I argue that current statutes and the scholarship that supports them fail to address adequately the role that risk, mental state, and consent should play in criminal law. They punish conduct that ordinarily would not rise to the level of criminal culpability and stigmatize individuals living with HIV. I propose limiting criminalization to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a culpable mental state. This approach requires juries to consider all evidence relevant to the risk of transmission and the victims’ understanding of that risk, a modest requirement that would nonetheless rectify the substantial flaws of current statutes and invert outcomes in numerous prosecutions.
The article transforms the HIV-criminalization debate by demonstrating that HIV-exposure statutes should focus on very limited and rare conduct. It also serves as an object lesson for reforming traditional criminal law’s approach to activities that put others at risk of harm, no matter the context.