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August 6, 2008

The Case Against Criminalization of HIV Transmission

Author Affiliations

Author Affiliations: Temple University Beasley School of Law, and Center for Law and the Public's Health at Johns Hopkins and Georgetown Universities, Philadelphia, Pennsylvania (Mr Burris); and Supreme Court of Appeal of South Africa, Bloemfontein (Mr Cameron).

JAMA. 2008;300(5):578-581. doi:10.1001/jama.300.5.578

Criminal law has been invoked throughout the HIV epidemic to deter and punish transmission. The public health community has not favored its use, but neither has it taken a vigorous stand against it. Meanwhile, governments continue to adopt HIV-specific criminal laws, and individuals with HIV continue to be prosecuted under general criminal law. Criminal law cannot in this area draw reasonable lines between criminal and noncriminal behavior, nor prevent HIV transmission. For women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV infection is inappropriate except in rare cases in which a person acts with conscious intent to transmit HIV and does so.

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