Exploring Cases of STD Criminalization

HIV Testing Form
A form for ordering HIV testing and related bloodwork. Don Bayley / E+ / Getty Images

Exploring Cases of STD Criminalization

In the summer of 2011, a 17-year old Canadian girl was charged with aggravated sexual assault. Why? She'd had unprotected sex with two boys her age without disclosing her STD status. An aggravated sexual assault is, according to the Canadian criminal code, a sexual assault that "wounds, maims, disfigures or endangers the life of the complainant." As such, a charge potentially subjects the assailant to life in prison.

Consent is a defense against such an assault, and the men in question are not arguing that the sex was without their consent. Instead, the charges were based on the fact the young woman in question knew she had HIV. Therefore, they claimed they were assaulted by her not disclosing that information - thus denying them the ability to provide informed consent.

Two years earlier, a 17-year old boy was arrested on similar charges in Arkansas. He acknowledged exposing four of his classmates to HIV by having unprotected sex with them without disclosing his HIV positive status. After being charged as an adult, he was allowed to go about his business. He ended up being charged with a fifth count a year later, after he turned 18.

Things to Think About

Were these similar circumstances? Would it matter if in one case the sex was for money and in the other case it was just for fun? Do you feel differently when the infected individual is a young man instead of a young woman?

What if one of the partners had asked to use a condom and was talked out of it? The question of whether "having sex while knowingly infected" should be criminalized is far from a simple one.

Some other types of lawsuits related to STD criminalization:

  • A number of married women have sued their spouses for exposing them to STDs. In such cases, there is generally an implication that an infidelity was the cause of the exposure. However, this can't always be verified, since the two people often were not tested before getting married.
  • When sexual assault or rape involves the attacker knowingly exposing his or her victims to an STD, additional punishment may be requested.
  • Occasionally sex work, including the making of adult films, is criminalized for individuals who test positive for certain STDs when those same activities would otherwise be legal. This is, however, more often a regulatory issue than a criminal one.

Criminalization Pros & Cons

In general I am not in favor of criminalization. However, there are a few situations where prosecuting STD transmission seems like an appealing option. These include:

  • When a person has knowingly and maliciously infected one or more partners.
  • When the goal of engaging in an unprotected sexual activity was specifically to spread an STD.
  • When someone has been asked about their STD status and lied. (This is different from not volunteering the information.)

However, it's possible that the benefits of being able to criminally prosecute STD transmission the few situations in which a person's behavior is not susceptible to other criminal charges may be outweighed by:

  1. The disincentive to test.
  2. Discouraging other forms of sexual responsibility.
  3. Increasing the stigma associated with STD infection.
  1. Making it even more difficult for individuals who are living with an STD.

In Conclusion

Criminalization laws fail to accurately reflect many of the human realities around STD testing and diagnosis. Testing isn't uniform, disclosure isn't easy, and current legislation may put needless barriers in the way of prevention efforts.There are some circumstances in which STD criminalization may, in fact, allow the prosecution of individuals who are an active danger to the public and the people around them. There are also real concerns about whether criminalizing unprotected sex and a failure to disclose STD diagnoses could potentially do more harm than good to the public's health.

The Criminal Code of Canada and Sexual Harassment http://www.mun.ca/sexualharassment/sexual_harassment/criminal_code.php Accessed Online 10/10/11

"HIV-positive teen arrested, charged" August 8, 2011. Edmonton Journal http://www.edmontonjournal.com/news/positive+teen+arrested+charged/5221093/story.html