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Should the Law Deal with Reckless Hiv Infection as a Criminal Offence or as a Matter of Public Health?

HIV is a health crisis of pandemic proportions. It is an insidious disease with a highly discriminatory impact, wreaking the most havoc on Sub-Saharan Africans, men who have sex with men, prostitutes and drug users.1 While the infection rate of HIV has waned in the UK, the large and increasing presence of high-risk groups means that controlling its spread remains a public health priority. In England and Wales, in addition to public health strategies, the criminal law has been utilised against persons living with HIV who recklessly transmit the disease via consensual sexual intercourse. Matthew Weait has consistently criticised this approach, arguing that the criminal law is providing an unsatisfactory response to a public health problem. He proposes that controlling the spread of HIV should be a matter of shared responsibility and the law should utilise voluntary, confidential and non-punitive strategies alone.2 This essay will begin as teleologically as Weait’s scholarship, although in the opposite direction. I believe that a person who, knowing s/he is HIV positive, has sex with another, who has not consented to the risk of transmission, engages in morally reprehensible conduct. The criminal law should have a role in deterring, incapacitating and rehabilitating such individuals. While Weait’s critique helpfully highlights the complexities associated with criminalisation, it will be submitted that de-criminalisation is not the answer. Instead, the challenge is to confront the complexities and formulate a criminal law response that effectively targets blameworthy conduct, while at the same time remaining sensitive to those living with HIV. It will be submitted that a number of amendments should be made to the current law to refine its scope and application. First, prosecutors should only charge the complete offence where the evidence proving causation is overwhelming. Where there is doubt, the prosecution should charge attempted assault. Secondly, to assuage the disincentive effect of criminalisation, the meaning of ‘recklessness’ should include something less than actual knowledge of infection. This expansion of recklessness should be mediated by a more