More Comments on HIV Criminalization

The video posted by Kaimi is pretty funny, but it makes the point negatively as well as positively. The negotiation is extensive, involving everything from sexual positions to meeting the parents, but there is still no mention of STDs or protection.

Matthew Weait, who has written brilliantly on the subject, made the most important point to me off line: opposition to criminalization must fundamentally reject criminal law as the appropriate lens for judging sexual behavior. He criticizes a couple of aspects of my discussion of the Swiss case:

•Continental Europe of course draws heavily (directly and indirectly) from Roman law principles, and so sees nothing strange about imposing general / positive legal obligations on people – in contrast to common law jurisdictions, where the duty relationship is (relatively) narrowly circumscribed.

•You say that “smart” sex is not a fair standard to apply to A or X … I agree, but a difficult one to argue in the courts perhaps. When it comes to the criminal use of negligence in English law (as in gross negligence manslaughter) the newly qualified driver is held to the standard of the competent and experienced one, the rooky surgeon to the surgeon who’s been doing it for twenty years. And I don’t see in principle, even though we are talking in a criminal context here, why the person upon whom the duty is seen to fall (i.e. the person with conscious knowledge that there is a higher risk of being positive, albeit no certain knowledge because no testing has happened) wouldn’t be seen as being in just the same position. It all comes down to developing strong policy argument against legal liability, I think, since the law has a habit of laying these little logical traps – once you start framing the argument within a legal framework the law has a habit of winning …

I agree, and that’s why the quest for the “right” rule suggested by Shane Hartman is legally logical but socially hopeless. When law wins, it means lawyers in the bedroom. Where’s Gunther Teubner when you need him?

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2 Responses

  1. Shane Hartman says:

    I agree it probably would be a socially hopeless way of addressing the HIV problem. In defense of a legal solution, wouldn’t it be great to correct for the power differential by legally endowing words with power in an effort to offset the social, cultural, and possible physical (regardless of gender) power differentials likely at play? I guess the problem is that in the real world, as the video so comically pointed out, these solutions are impractical. If I wasn’t taking the bar in 5 days I would look for empirical literature on how effective rape laws and vigilant prosecutions are in deterring rape. I think this type of empirical evidence could inform this question about the desirability of criminalizing HIV infection.

  2. colon detox says:

    i wonder when are we going to have the cure for HIV/AIDS ? we are living on an age with very high technology but still we have not found a cure for this disease.