Criminal Prosecution and HIV-related Risky Behavior

There has been a serious debate in the UK about whether the transmission of HIV should be a prosecutable offence. This is especially the case after a couple of high profile cases resulted in prosecution, in Scotland in '01 for 'reckless injury' and soon after in England and Wales for 'reckless transmission'. This has led to a lot of speculation in the UK about what the public health consequences of taking a stringent or lenient view of HIV transmission may be. The main concern being that taking a hard line may discourage both disclosure to partners and also people coming forward for testing or voicing their potential concerns to GP's and psychologists.

Delavande,Goldman and Sood (2008) are the first to empirically investigate the potential consequences of prosecutions for HIV transmission. They use U.S. inter-state variation in prosecution rate, from a limited sample of just 316 prosecutions for this crime and categorise states into those with 'strict' or 'non-strict' enforcement of laws which would permit prosecution. They then use a nationally representative survey of the sexual risk behaviours of 1,400 people with HIV to see is there a relationship between state type and risk behaviour. Interestingly, they find that in 'strict' states safe sex is practiced more often by those with HIV as is abstinence. They go on to claim that transmission rates should be 'responsive to agressive prosecution' and if the prosectution rate for HIV is doubled then the number of new infections will be reduced by a third in 10 years.

Looking at the figures I don't think it can control fully for the effects of the 'elephant in the room' in this paper which is that those in stict states are more likely to visit prostitutes and more than twice as likely not to disclose their HIV status to any of their last 5 partners. It is very difficult to know the extent of the knock on effects this can have on new infections and it may indeed wipe out the potential effects of more safe sex and more abstinence, the latter which probably shouldn't be the goal for a HIV intervention anyway. However, we have to be very careful before advocating criminalisation in the case of HIV transmission and framing the argument in term of a welfare enhancing 'tax on risky behaviour' could have some dangerous consequences down the line both in terms of the welfare of those with HIV and the number of new infections criminalisation may cause. Because criminalisation may disincentivise testing it is also difficult to separate this effect from the potential effect it may have on reducing new infections. More work on this is definitely needed but it is worth noting that WHO and European Commission guidelines going back three decades have stated that it is an ethical obligation on the part of those with HIV to disclose to potential or existing partners, but that this should not translate into a legal obligation as such legislation would be 'inappropriate ad impractical'.