Apprehending the weapon within: the case for criminalizing the intentional transmission of HIV.

• Author: Ruby, Rebecca

1. INTRODUCTION

   The reality is people are dying in epidemic numbers from AIDS. For too long, this disease has been treated as a political struggle, not a public health crisis. With the introduction of the "HIV Prevention Act of 1997," some of us hope that the foolish political struggle will end, so the appropriate treatment of those infected can begin.(1) The human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) are serious threats to the public health of the United States and the world.(2) Yet no one will agree on what is the best method of preventing the intentional transmission of the HIV virus. The most effective way to stem the spread of the virus is to criminalize the intentional transmission of HIV through the use of existing criminal statutes.

   Historically, education and counseling have been relied on to prevent the transmission of the HIV virus. These methods became more effective as more was learned about the virus and how it was spread. However, neither education nor counseling has effectively stopped or even significantly slowed the spread of the virus.(3) The dynamics of the disease have shifted from the early 1980s when AIDS was first discovered in the United States. Initially the majority of those infected with HIV were homosexual men, intravenous drug users, and recipients of blood transfusions. This is no longer the case.(4) Increasing numbers of women, children, and heterosexual men have become infected.(5)

   Before people were aware of AIDS, unidentified symptoms and deaths were left unexplained. Now the symptoms are recognized to be the result of AIDS or an opportunistic disease which takes advantage of the weakened immune system caused by the HIV virus. Due to advances in research, the public better understands how HIV is transmitted.(6) The development of a more reliable HIV antibody test allows for the diagnosis of far more individuals who had not previously tested positive.(7) Prior to the identification of the HIV virus and the means by which it is transmitted, people acted as though they were invincible, engaging in what we now know to be extremely risky behavior. This attitude allowed the virus to spread to individuals who were unaware of the chances they were taking.

   Unfortunately, HIV or AIDS has touched the lives of almost every American. It is rare to meet someone who does not know, or at least know of, someone who has HIV or AIDS, or who has already died as a result of the disease. Education and counseling are helpful and necessary in preventing the spread of AIDS, but they are not sufficient.(8)

   More must be done to prevent both the knowing and the unintentional spread of AIDS. This Note argues that individuals who have intentionally transmitted the HIV virus ought to be prosecuted under existing criminal statutes, using HIV-positive status as an aggravating factor. Part II looks at whether HIV should be treated differently from other public health issues. Part III discusses the viability of criminalizing the knowing transmission of HIV. Finally, Part IV analyzes several different forms criminalization may take. First, the use of HIV-specific statutes which now exist in half of the states in this country, and in other countries, is assessed. Second, the use of existing criminal statutes will be examined. Third, the possibility of using HIV as an aggravating factor when charging an individual with a separate crime will be explored.

2. SHOULD AIDS BE TREATED DIFFERENTLY THAN OTHER PUBLIC HEALTH ISSUES?

   AIDS is a particularly sensitive topic because of the stigma and discrimination which accompany the disease. This is likely due to the fact that those who first developed the disease were groups which already suffered discrimination, namely homosexuals and intravenous drug users.(9) The desire to prevent further stigmatization of those with AIDS has led to an ineffective, if not misguided, approach to preventing the spread of the disease.

   Some argue that treating AIDS differently from other communicable diseases is unacceptable.(10) Their argument is that public health officials treating AIDS differently than any other contagious or infectious disease(11) leads to a further stigmatization of those with AIDS, which is especially problematic, since most individuals with the disease are already members of "a socially marginalized group."(12) However, treating AIDS the same as all other communicable diseases is not likely to be acceptable either.(13)

   The Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic ("The Watkins Report")(14) provides a 350 year history of past public health epidemics and how each was handled by the public health community.(15) Routinely, the response has been to quarantine those with the disease.(16) Quarantine was used with leprosy, cholera, tuberculosis (TB), and yellow fever.(17)

   Though it is unlikely that those opposed to special treatment of HIV would be in favor of quarantine for those infected, some countries have used a quarantine to deal with the epidemic.(18) Though quarantine was used prior to the rise of procedural due process,(19) the quarantine statutes still exist, and HIV and AIDS have caused such alarm that there is a new desire to use these statutes.(20) In fact, the Public Health Control of Diseases Act of 1984 permits the detainment of those whose behavior may be putting others at risk.(21) Additionally, the claim that no other disease has been criminalized as AIDS has been is simply not true. It is already a crime in more than half the states in the U.S. knowingly to transmit a venereal disease.(22) For example, it is a misdemeanor to intentionally expose another to syphilis.(23) Syphilis, much like the HIV virus, has led to large health crises.(24) It follows, then, that because AIDS is currently a fatal disease, intentionally exposing another should be criminalized with a penalty at least as severe as that for syphilis.

   The argument that treating HIV/AIDS differently leads to increased stigmatization is presumptuous. As discussed above, fewer and fewer of those infected with the HIV virus are members of those groups which were traditionally discriminated against. In fact, making such an argument only reinforces the notion that AIDS is a disease which only affects homosexuals and IV drug users. This is a very dangerous message to send.

   AIDS is 100% fatal. At this point, there is no cure, no vaccination, and scientists cannot provide the public with a complete list of transmission methods.(25) Because of these attributes, there must be some special treatment of AIDS, most notably with respect to the intentional transmission of the disease.

3. SHOULD THE KNOWING TRANSMISSION OF THE HIV VIRUS BE CRIMINALIZED?

   Assuming that AIDS should be singled out from other public health crises, the next question to answer is whether the knowing transmission of HIV should be criminalized. The key to answering this question is to clarify the intended purpose of criminalization. The overall goal is to stop, or inhibit, the spread of AIDS. However, because criminalization may merely be a step toward that goal, a more specific and criminally related goal is necessary. The traditional theories behind enacting a criminal law are retribution and utilitarianism.(26)

   Criminalizing the intentional transmission of HIV would satisfy either of these theories. Retribution is the punishment of wrongful acts. Utilitarianism posits that society imprisons a person to eliminate the threat posed by the individual, to deter similar future behavior by others, and hopefully to reform the imprisoned individual.(27) Therefore, if retribution is the guiding force, and the goal is to punish those who intentionally expose others to HIV, criminalization is necessary. If the underlying theory is utilitarianism, and if the costs incurred by the punished party are outweighed by the benefits enjoyed by society, punishment of certain behavior is an acceptable and effective response.(28) Even those who argue against criminalization recognize that if specific behaviors are prohibited, HIV-positive individuals will refrain from engaging in those activities.(29) A problem will arise if the condemnation is applied to all who are HIV-positive, as opposed to only those who have committed a moral wrong.(30) Regardless of which theory is relied upon as the underlying ground for criminalization, retribution or deterrence, the question of whether criminalization is the proper tack to take is still hotly contested.

   There are several arguments against criminalization, some of which go beyond the scope of this Note. This section will put forth the relevant arguments against criminalization and then analyze and respond to each one in turn. First, many argue that criminalization will be an ineffective deterrence, and will actually increase the spread of the disease by discouraging testing.(31) Second, many are concerned that imprisoning anyone with HIV or AIDS will be a death sentence for them because of the poor medical facilities in jails and prisons.(32) Third, some claim that counseling and education are much more effective than imprisonment in changing sexual behavior or drug use.(33) Fourth, AIDS activists fear that criminalization will increase discrimination against those who are HIV-positive.(34) Finally, it is contended that criminalization will "reinforce ... the hysteria, bias and prejudice" which already exist against HIV-positive people by criminalizing conduct which poses little or no threat of transmission.(35)

   Furthermore, some assert that the move toward criminalization is politically motivated.(36) The policy decision to criminalize the transmission of HIV, which has led to an increase in arrests, prosecutions, and sentences, has been criticized as "politically safe and intellectually easy."(37) However, this claim no longer rings true given the diverse nature of the population of those now infected with HIV.

   The first...