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HIV Crime and Punishment: Contestation and Debate

HIV Crime and Punishment: Contestation and Debate

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An essay for the 2012 Undergraduate Awards Competition by Karinda Tolland. Originally submitted for BA ANTHROPOLOGY , with lecturer Thomas Strong in the category of Social Studies
An essay for the 2012 Undergraduate Awards Competition by Karinda Tolland. Originally submitted for BA ANTHROPOLOGY , with lecturer Thomas Strong in the category of Social Studies

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Published by: Undergraduate Awards on Aug 30, 2012
Copyright:Attribution Non-commercial


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HIV Crime and Punishment: Contestation and Debate
~ Sometimes bodily orifices seem to represent points of entry to social units ~Mary Douglas~ Most of us still can’t talk honestly about why getting fucked is so powerful ~Richard Elovich
 Nadja Benaissa Found GUILTY In HIV Spreading Trial 
” (The Huffington Post, 2010)“‘
 No Angels’ singer Nadja Benaissa found guilty for hiding HIV from unprotected sexual  partners
” (New York, Daily News, 2010)
“German girl band star charged in HIV case”
(BBC News, 2010)
German singer confesses in HIV trial 
” (The Australian, 2010)These recent headlines capture the provocative and worldwide media coverage of thelegal action against Nadja Benaissa, a 28 year old musical artist from Germany who isfamous for belonging to
 No Angels
, credited as being one of the most successfulwomen’s bands in Europe. Benaissa was charged with grievous bodily harm for allegedly infecting a male sexual partner with the Human Immunodeficiency Virus(HIV). This criminal sanction was based on non-disclosure of her HIV-positive status,infecting one man, and exposing another two who did not contract the virus. WhileGerman law does not require that a HIV positive person discloses his or her status tosexual partners, it does hold accountable people who know they are HIV-positive and donot take precautions so as not to transmit the virus to others (Edgeboston 2010). Benaissafaced a ten-year prison sentence, and while for some this may appear excessive, it wasnot long enough for many commentators in the blogosphere, who vilified her and wishedher dead. This particularly ‘high profile’ case provides just one example of the popularity of the increasing criminalization of HIV transmission and/or exposure acrossthe globe.1
In most western countries, there have been efforts to control the spread of HIV throughincreased education and public health movements, but there has also been an increasingmove to criminalize people for the spread of the disease. The main reason for this is,obviously, that an HIV infection is harmful to the carrier of the virus. The cultural tropeof the vengeful AIDS carrier known as ‘AIDS Mary’
 who has unprotected sex with theintention of infecting men with HIV and leaving them with the words, “Welcome to theWorld of AIDS”, scrawled across the bathroom mirror was a popular myth of the 1980sand provides a provocation of purposeful and malicious intent to harm another, wherein itis difficult grant impunity. While the spectre of such myths loom large, Gaëtan Dugas isinfamously known across North America for being ‘Patient Zero’ – the Plague Rat of AIDS – having almost sociopathic behavior by allegedly intentionally infecting, or atleast recklessly endangering, others with the virus: “I’ve got gay cancer,” he’d say. “I’mgoing to die and so are you” (Shilts 1987:165).Does having sex with someone without disclosing that you have a sexually transmittabledisease make you a criminal? Isn’t it right to prosecute and doesn’t society have goodethical reasons for wanting to punish HIV transmission or exposure? Why criminalizethe spread of HIV and not other sexually transmissible diseases, especially those such asHuman Papilloma Virus (HPV) which is responsible for a number of cancers?
Or, is itludicrous to propose attaching criminal liability to the spread of illness between people?It is the social scientist that seeks to understand people’s behaviors; therefore this essay,drawing on insights from work on the medico-legal borderland will consider theevidence, if any, that justifies the criminalization of sexual exposure, or more succinctly,the criminalization associated with HIV.The first part of this essay will focus on the various arguments – propositions andoppositions – to the criminalization of HIV transmission and/or exposure in Europe.
There is also the ‘AIDS Harry’ version where man infects women.
In several States in North America, failure to disclose one’s herpes infection to a sexual partner is groundsfor criminal prosecution or a civil lawsuit.
Unfortunately, it is beyond the parameters of this essay to delve into the global perspective; however, Iwill provide global statistics in some instance for contextualization purpose. Interestingly, all of the top 15ranking countries that criminalize sexual behaviour are European, except for Australia, Canada and NewZealand (which are governed by British government derived law), Azerbaijan and the USA (GNP+ 2010).
analysis of the ‘biopowerand ‘biopoliticsas well as the acceptable risk-taking behaviours that operate in society will be discussed in the second part of this essay. Iquestion whether the invocation of criminal sanctions are an appropriate, effective, or even ethical, means for achieving behaviour modification, especially where thecontrolling of sexual behaviour is concerned. Further consideration will be given to the public health impact of criminalization and whether the efficacy and morality of  prosecution is creating a viral underclass in the law.
HIV Crime: Propositions and Oppositions
Since early in the HIV epidemic, criminal law has been invoked to deter and punishsexual transmission. The criminalization of HIV has taken the form both of HIV-specificcriminal statutes and the application of general criminal law (such as murder,manslaughter, attempted murder, assault, and grievous bodily harm) in matters involvingexposure to or transmission of HIV.
International contestation and debate regarding thecriminal sanctions of HIV-related legislation has emerged, in light of the increasingnumber of prosecutions. Since 1987, when prosecutions in Germany, Sweden and theUnited States were first recorded, more than 600 individuals in over 40 countriesworldwide have been convicted of HIV transmission and/or exposure (GNP+ 2010). Of the 40 countries which do criminalize, the majority impose liability merely for exposinganother to the risk of transmission rather than for transmission itself (GNP+ 2010).Although criminalization raises hugely significant challenges regarding the way in whichlegal intervention responds to human health and also to questions about how states can best address a disease which is transmitted primarily through behaviours (Brown et al2009), the public impulse for criminalization and the popularity of criminal prosecutionsarticulates the general (and often repressed) fear associated with the ongoing rapid spread3

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