Criminalizing Risky Sexual Behavior: Some More Evidence

The cornerstone of the argument against treating unprotected sex as a crime is that the frame is simply inapposite. Yes, it’s logical; one can easily fit sexual behavior with an HIV risk into the same syllogisms as brawling with a knife, but as I’m sure old OWH would say at just this point, the sex life of law has not been logic but experience. At the same time, the argument that criminal law just doesn’t fit is hard to frame, or prove, empirically. In this post, I thought I would briefly summarize the empirical evidence on two narrower points: that criminalization of risky sexual behavior does not protect public health, and may hurt it.


On the first point, there is one study (by this blogger and colleagues) that attempts to directly test the impact of criminal law on the attitudes and sexual behavior of people at risk of HIV in the US. From the abstract:

In this empirical study, 490 people at elevated risk of HIV were interviewed, 248 in Chicago and 242 in New York City. … Indicators of the law were 1) residence in the state, and 2) belief that it is a crime for a person with HIV to have sex with another person without disclosing his or her serostatus. Using stepwise logistic regression, we examined independent predictors of unprotected sex, adjusting for factors including age, race/ethnicity, disclosure, biological sex at birth, sexual orientation and number of partners.

People who lived in a state with a criminal law explicitly regulating sexual behavior of the HIV-infected were little different in their self-reported sexual behavior from people in a state without such a law. People who believed the law required the infected to practice safer sex or disclose their status reported being just as risky in their sexual behavior as those who did not. Our data do not support the proposition that passing a law prohibiting unsafe sex or requiring disclosure of infection influences people’s normative beliefs about risky sex. Most people in our study believed that it was wrong to expose others to the virus and right to disclose infection to their sexual partners. These convictions were not influenced by the respondents’ beliefs about the law or whether they lived in a state with such a law or not. Because law was not significantly influencing sexual behavior, our results also undermine the claim that such laws drive people with and or at risk of HIV away from health services and interventions.

We failed to refute the null hypothesis that criminal law has no influence on sexual risk behavior. Criminal law is not a clearly useful intervention for promoting disclosure by HIV+ people to their sex partners…

Studies have compiled prosecution data for the US and Europe. These studies are useful in assessing the possibility that criminalization could reduce HIV infection by incapacitation. The answer is no. While there have been hundreds or even thousands of prosecutions reported around the world, the number is far too small in relation to the number of HIV cases to plausibly effect population rates of transmission.

The logical arguments for the second point – that criminalization is bad for public health — are hard to fault: criminal laws create a good reason not to know one’s status if one wishes to continue having unsafe sex; they may lull uninfected people into assuming that a positive partner will disclose or insist upon condom use; they create a hostile environment that makes people afraid to be identified as HIV-positive; they promote stigma by portraying people with HIV as an evil Other. The evidence that criminalization does harm has been slow to develop, but recently some useful studies have been conducted in the UK. Both come from a team in the UK that seems to be the only research group in the world interested in this significant and enduring policy question. One, which finds that criminal prosecutions may create a false sense of security that HIV positive partners will disclose, was mentioned in an earlier post. This is from an earlier study, Dodds C, Keogh P. Criminal prosecutions for HIV transmission: people living with HIV respond. Int J STD AIDS. 2006;17:315-318.

This paper presents an analysis of responses to the first criminal convictions for HIV transmission in England and Wales within a sample of people living with HIV. … The responses were collected during 20 focused group discussions with a community and web-recruited sample of heterosexual African men and women, and gay and bisexual men (n = 125) living with diagnosed HIV in London, Manchester and Brighton. The vast majority (90%) of comments made were critical of the implementation and impact of criminalization. In particular, respondents expressed concern about the way in which criminal convictions conflict with messages about shared responsibility for ‘safer sex’, and the extent to which such cases will exacerbate existing stigma and discrimination related to HIV. Most felt that the successes achieved by human rights approaches to HIV prevention, treatment, and care were placed under threat by the growing culture of blame encouraged by criminal prosecutions.

Stay tuned here for up-to-the-minute (well, semi-daily) coverage of criminalization at the Mexico City AIDS conference.

You may also like...

1 Response

  1. A.W. says:

    This is a little off subject, but I always thought it was a bad idea to accept what i call “S&M” defenses. As in, “sure i was choking her, but it was a game, so i am not guilty of murder.” It seems in protecting bizarre conduct, we endanger all citizens by making crime harder to punish. I am not saying you shouldn’t be allowed to play your kinky games, but at your own risk.