Whats the Basis for Criminalizing HIV Transmission

1
Whats the Basis for Criminalizing HIV
Transmission?

• The role of criminal law in HIV prevention.

2
Criminal Theory and Objectives of Criminalization

• Incapacitation
• Rehabilitation
• Deterrence
• Retribution

3
Types of laws used or that could be used to
influence HIV risk behavior.

• HIV specific exposure and transmission laws, i.e.
  laws that explicitly mention and exclusively
  apply to conduct by people with HIV
• Public health statutes prohibiting conduct that
  would expose others to communicable diseases
  and/or STDs
• General criminal laws governing attempted murder
  and assault

4
Texas Laws on HIV Transmission

• There are no HIV specific laws in Texas
• Accelerated HIV Intervention Program
  Recalcitrant transmission of HIV in Texas
• Texas can use general laws governing criminal
  assault

5
Recent Texas Case Study

• Philippe Padieu 51 y/o
• Frisco, Collin County, TX
• Tested positive in the Fall of 2005 Allegedly
  did not disclose his status to partners
• Four women, sexual partners of Padieu, tested
  positive in February 2007
• Padieu is arrested for aggravated assault of the
  four women in July 2007
• Widespread media coverage ensues

6
PRECEDENT and PROCEDUREAn Examination and
Comparison to the Criminal Liability for HIV
Transmission in the United Kingdom

• Cases of transmission charged under the Offences
  Against the Person Act of 1861 Section 20,
  Recklessly causing grievous bodily harm (GBH)
  Non HIV Specific Law
• Since 2003, over a dozen cases have been pursued
  and at least 10 convictions with jail sentences
• Precedent and procedures for future trials

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PRECEDENT and PROCEDUREAn Examination and
Comparison to the Criminal Liability for HIV
Transmission in the United Kingdom CONT.

• Mohammed Dica Kenyan-born asylum seeker
• First ever conviction in England 2003
• Failed to disclose status to partners he
  infected, sentenced to 4 years and 6 mos.
• Media dubbed him the AIDS Assassin
• Mark Gadsden prosecuting counsel Conduct no
  different from running down the street with a
  hammer and smashing someones skull in

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What is necessary for a conviction under Section
20 GBH?

• The prosecution must prove
• - That X was the cause of Ys infection
• - That X was reckless (e.g. non-disclosure, no
  consent) with respect to causing that infection
• X may raise the defense that Y consented to the
  risk of transmission, or that he honestly
  believed that Y consented
• - This is for the prosecution to disprove
• - If the defense is successful, X is not
  criminally liable

9
Recklessness and Consent

• Recklessness defined as taking an unreasonable or
  unjustifiable risk that transmission may occur.
• What is reckless in the context of HIV
  transmission?

• Consent to the risk of transmission is considered
  an affirmative defense.
• What constitutes an acceptable form of consent?

10
Knowledge and Disclosure

• Defendant must have knowledge of status
• Prosecution more easily establishes that there
  was no consent in the absence of disclosure
• There is no legal obligation to disclose status
  to sexual partners
• How is the level of perceived risk or the
  knowledge of HIV risky behavior determined?

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Public Health Law as an Alternative

• REHABILITATION - greater flexibility in
  interventions under public health legislation.
  Public health powers could be used to support
  individuals by addressing underlying issues
• DETERRENCE interventions can become
  increasingly coercive while balancing personal
  liberty and public health protection
• INCAPACITATION detention of an individual in a
  setting with less high-risk activity
• Accelerated HIV Intervention Program
  RECALCITRANTS

12
RESOURCES

• Aurelio Rodriguez
• Tarrant County Health Department
• arodriguez_at_tarrantcounty.com
• Please contact me for a list of resources.
• This slide presentation will be available online.