2.1 The Argument from Forensic Science

This case provides Weait with sufficient ammunition to make his first argument against the criminalisation of HIV transmission. He evaluates the current scientific state of the art and demonstrates, convincingly to my mind, that it is for all intents and purposes virtually impossible to prove that HIV infected person A during unsafe sex with HIV infected person B was the cause of A’s infection. A could well have been infected a long time ago by another sex partner; quite conceivably, A might have been the cause of B’s infection. The state of forensic science, relying on phylogenetic analysis, at the time of writing, is such that we are unable to demonstrate incontrovertibly that B was the cause of A’s infection (Pillay, Rambaut, Geretti and Brown, Reference Pillay, Rambaut, Geretti and Brown2007). Despite this, ‘all those sentenced and imprisoned in England and Wales for having infected their sexual partners with HIV have been convicted under s 20 of the Offences Against the Person Act 1861’ (p. 115). For that, the prosecution ‘must prove that the defendant did in fact cause serious bodily harm to another person and that, at the relevant time, he was aware of the risk of causing some degree of bodily harm’ (p. 115). Weait is rightly pointing out that scientifically the proof of causal responsibility is impossible at this point in time in most cases. This argument is contingent on particular circumstances of forensic science’s capabilities that are bound to change over time, hence it does not amount to an in-principle argument against the criminalisation of HIV transmission. What it does suggest, however, is that convictions based on current phylogenetic analyses amount to miscarriages of justice.Footnote ⁴ One way around this problem, used in numerous jurisdictions around the world, is to punish knowingly subjecting someone to the risk of HIV infection.

2.2 The Argument from Risk and Recklessness

Weait’s next argument is somewhat hidden in a lengthy section on risk, recklessness and HIV. We hear a lot about the risk society, and are taken on a postmodern journey including various excursions on women, ethnicity and homosexuality. Certain groups of people are considered to be risky or reckless in the context of HIV transmission and so are more likely targets for the criminal justice system. Weait has an unfortunate habit in this section of making sweeping generalisations including ‘it is unsurprising that it is women’s bodies. . .that are – within the discourse that frames the heterosexual HIV pandemic – characterised as the source of infection’ (p. 132). The sources of this insight are theoretical texts by Catharine Mackinnon from 1982 (pre-dating AIDS) and by the Australian philosopher Elisabeth Grosz from 1994 (very much the heydays of the heterosexual AIDS hysteria in the Western world). One anecdotal case is deployed to underscore this point. I doubt that it does the work it is supposed to do. The mass media would undoubtedly happily drag anyone into the limelight who has infected someone else with a serious illness by means of sex. After all, the ingredients are ideal for any red top; sex and death are known to sell independently of each other, combined they are unbeatable.

Weait goes on in this vein, we learn about the ‘Otherness’ of Blacks (Africans and Caribbeans) in the UK, and about racist British media reports. Weait criticises the ‘racialisation (and, more particularly the “Africanisation” [sic]) of HIV and AIDS’ (p. 137). While I am very sympathetic to Weait’s concerns about sexism, racism and homophobia, and while I have no reason to doubt his claims about racism in the British mass media, I am tempted to suggest he might wish to consider another look at the epidemiological data coming out of Southern African and Caribbean nations, and the disproportionate contributions men coming from such backgrounds make to the pandemic’s continuing success in developing countries as well as developed countries. It is difficult to avoid the conclusion that the virus is fairly efficiently transmitted by many African and Caribbean men. Not coincidentally, and frequently not voluntarily, women are more often than not at the receiving end of this behaviour.

Weait’s excursus on AIDS and gay men pretty much represents the state of discussions in the late 1980s to mid 1990s. Among other valuable lessons in the history of AIDS we are being reminded that initially AIDS was called GRID (or Gay Related Immune Deficiency). While it is probably true that at the time homophobia drove much of the media’s, and probably less so the regulatory, response to AIDS, I doubt that that remains true today.

So, while these lengthy excursions do not add a great deal to the argument on risk, Weait’s analysis itself is worthy of serious consideration. He suggests that the criminalisation of HIV transmission is an attempt by the criminal justice system to manage and control risk within a broadly liberal framework that is aimed at protecting the citizen’s body’s integrity. The idea of recklessness plays an important role in the prosecution of some HIV infected people in Britain (pp. 28ff.). Weait explains that English law defines someone as reckless, with regard to a particular consequence, if the defendant ‘was aware of the risk of that consequence occurring, and. . .[if] the risk-taking conduct was unjustified in the circumstances’ (p. 117). It is evident, given these criteria, that there is no objective fact of the matter, rather whether or not someone acts recklessly, in the eyes of a jury, is a subjective decision formed among the members of the jury in a given trial.

Weait offers a sensible analysis of the consequences of such an understanding of recklessness in the context of his argument about the role of the criminal justice system in a post-enlightenment, post-modern society. Juries tasked with determining whether a defendant has acted recklessly need to evaluate the reasonableness of such a person’s actions. Is it then reckless if a gay man transmits HIV in a sauna setting, even though he used a condom during sexual intercourse (assume it broke or slipped off)? Any juror’s judgment on this issue will be coloured by media representations of the defendant. As Weait points out, ‘because people living with HIV have been demonised and marginalised, because they represent the paradigm Other, because they exist both as representatives of a “dangerous class” [sic] and as discrete individuals with whom intimate relationships can be formed,. . .it will be all but impossible for them to avoid the accusation (or the verdict) that an incident of onward transmission was their [sic] responsibility and no other’s’ (p. 164). This in turn would prevent a fair treatment of the defendant in question. It would also unjustly place the burden of protection entirely on the shoulders of the HIV infected individual, a person already likely to be marginalised in society for the reasons Weait has outlined. Weait’s suspicions of the criminal justice system are probably not unjustified, when he notes that it is ‘at the very least unsurprising that the first transmission cases in the UK were brought against, respectively, a convicted drug user, three black African male migrants, a Portuguese immigrant heroin addict, a white man who infected a woman in her eighties, a gay man and two heterosexual women, one of whom had a history of sexual relationships with Afro-Caribbean men’ (p. 146).

2.3 The Argument from Consent, Knowledge and Disclosure

Many AIDS NGOs as well as public health experts have argued that it does not make much sense to burden the infected person alone with the responsibility for not transmitting the virus to their sexual partner(s). After all, the person who became infected could well have voluntarily given first person informed consent to the infection risk as opposed to the infection itself, in which case the transmission would have been a fairly straightforward case of harm to self. Any defendant would have to be acquitted of criminal charges. Much depends, in other words, on the question of whether a defendant can reasonably claim that the claimant consented to the risk of HIV transmission. A corollary of this is another question, namely whether the person was reasonably knowledgeable of the risk she ran by having unprotected sexual intercourse with the defendant, and indeed whether or not the infected person had disclosed material information about his HIV status to their sexual partner. It is worth keeping in mind that the words we use to describe what is happening in this context are far from neutral. Consider whether an infection is actively passed on (this surely is implied when we say that the virus was transmitted by someone) by the infected person or actively acquired by the initially uninfected person. Does the nature of this act change subject to whether consent was given, knowledge existed and disclosure was provided?

Weait points out that in two major legal cases (Dica Footnote ⁵ and Konzani Footnote ⁶) the defendants argued that the complainants were voluntarily engaging in unsafe sex with them, which formed the basis for their mistaken belief that the complainants consented to the risk of HIV acquisition. It seems to be the case that the English courts permit consent-based defences against criminal charges in the context of HIV transmission. The obvious problem is: whom should the jury believe? The defendant who argues that his sexual partner voluntarily accepted the risk of HIV acquisition or the complainant who insists that she was not informed about the risk, and had she known she would not have taken it. Invariably there will be two different accounts of the same event, and there is no way to establish the facts of the matter, because the consent giving took place in private between two competent adults. The Court of Appeal in the Konzani case held essentially that ‘those who do not willingly consent to the risk, but who willingly choose to run [sic] the risk, are not to be held responsible for the consequences of doing so’ (p. 180). However, it also held that for consent to exist, and to be meaningful, it required the HIV infected person to disclose the infection to his sexual partners. In the Court’s words: ‘She cannot give an informed consent to something of which she is ignorant’ (p. 181). Weait is highly critical of this view, because to his mind it is possible for someone to give meaningful consent to an infection risk without that disclosure. For instance, one of the women in the Konzani case conceded that she was aware of the fact that the prevalence of HIV is significantly higher among heterosexual African men when compared to heterosexual Caucasian men. Weait rightly questions why we should assume that her consent to have sexual relations with Mr Konzani was uninformed with regard to the risk of HIV infection.

Weait offers a couple of other reasons aimed at weakening the strength of the duty-to-disclose standard, including that there is no ‘necessary correlation between disclosure to a partner and subsequent safer sex with that partner’ (p. 188), that HIV infected people might think that others should protect themselves, or that it might be inappropriate in some circumstances to talk about one’s infection, and of course the fear of rejection. None of these reasons strikes me as particularly convincing. The issue surely is not whether there is a logical (i.e. ‘necessary’) connection between disclosure and risk avoidance, but whether such information in many cases would have the desired impact, namely safer sex (or no sex at all). There can be no doubt that disclosure would increase the number of people opting for protective measures of some kind or other. From a public health point of view it is unhelpful to ask the question of whether that would necessarily (i.e. in all cases) be so. It would not always be so, but that surely isn’t the point of requiring disclosure. Equally, one could agree that the sexual partners of HIV infected people have a duty to protect themselves and still believe that they are entitled to make informed choices based on disclosure. Perhaps to enable them to protect themselves even better, perhaps in order to enable them to make an informed choice. Respect for them as individuals requires us to provide information that could reasonably be held to be material to their decision-making. The arguments from embarrassment and/or fear of rejection are, while one empathises with such individuals, not persuasive either. It is doubtful that a moral argument in favour of non-disclosure could be based on the fact that many infected people just would not feel too good about having to disclose. It might be unpleasant and frustrating for an HIV infected person to discover that people she would like to have sexual intercourse with reject her advances once they know about her STI, but no doubt people are very much entitled to make such choices.

Weait has chosen Immanuel Kant as his philosophical punching bag. He believes that the argument in favour of disclosure is built on the Categorical Imperative never to use other people as means to one’s own ends (pp. 190f., 201). Weait is mistaken here. Kant’s formula demands that we treat other people never merely as means to our ends but always also as ends in themselves (Kant, Reference Kant1964, p. 96). This cannot be applied straightforwardly to our problem scenario. If two people agree to have unsafe sex with each other and they do so knowingly and voluntarily, each is making his partner’s objectives his own objectives, and so both cease to be mere means. The HIV issue simply does not enter into the equation here since it is immaterial to the means–ends construct altogether. A sexual partner would have been merely a means to an infected person’s end if that person’s objective (his deliberate, considered intent) would have been to use that unsuspecting person in order to transmit HIV. This is not what usually drives infected people to have unsafe sex. Kant’s other formula requires that we should act always in such a way that we can also will that the maxim guiding me becomes a universal law (Kant, Reference Kant1964, p. 70). As it is, HIV infected people could hold consistently that their non-disclosure behaviour should become the societal rule, and that the duty to protect (themselves) falls onto each person him- or herself. No conflict with Kant there either.

Weait is concerned that this move by the Court of Appeal would have negative consequences in public health terms, because it might well lull people into a false sense of security (i.e. ‘my sex partner hasn’t disclosed that he is HIV infected; and that is what the law requires of him if he is infected, so I can safely have unsafe sex with him’) (p. 182). This argument strikes me as important, because it speaks directly to Feinberg’s public interest based criterion. If there is a significant probability that the criminalisation of HIV transmission could translate into an increase in the number of infections, the criminalisation of HIV transmission would be counterproductive. Whether or not that is the case we do not know. It is probably fair to say that the deterrence effect of the criminal law usually works, or else it would not exist. It is unfortunate that we do not have strong empirical evidence one way or another in order to settle this question, but we do have a strong prima facie reason to deploy the criminal law in this context. Weait is also at his weakest here as his empirical evidence consists of anecdotal cases as opposed to epidemiological data. It is perhaps not insignificant, however, that only very few cases have been prosecuted in the UK, Canada, Australia and other countries. This suggests to me that in most cases people who acquired HIV accepted responsibility for their actions and did not seek some legal kind of recourse. Possibly the small number of cases that exist today are a true representation of cases where the virus was indeed unethically transmitted to unsuspecting, uninformed sexual partners.

2.4 The Argument from Responsibility

In order to be held legitimately responsible for one’s actions, in a liberal society, one needs to have acted autonomously (i.e. competently and voluntarily). Weait seems to question this cornerstone of liberal approaches to justice by means of deploying well-known feminist critiques of the very idea that there could be such a thing as the paradigmatic autonomous individual liberal that legal scholars have created. These critiques are well-known and reincarnate in surprising contexts from Amitai Etzioni’s communitarianism to the Ubuntu chants of African philosophers and much of recent virtue ethics’ theorising (e.g. Etzioni, Reference Etzioni, Parmet and Illingworth2006). Essentially the arguments converge around the claim that individuals are not what they are made out to be by liberal theoreticians. The charge is that for a liberal justice system to succeed we need to disconnect the individual from his lived experiences – or as Weait puts it (p. 204):

The question remains: even if we accepted the arguably powerful criticisms of standard liberal approaches to personhood, why would this translate into a persuasive argument in favour of the decriminalisation of HIV transmission in circumstances of recklessness?Footnote ⁷ An individual’s ethnicity, sex, upbringing, etc. have a bearing on his conduct in this context, but unless Weait implies that these forces are sufficiently powerful to render a person’s conduct non-autonomous, all he is really saying that these things influence us in our behaviours. The stark choice here then seems to be to ascribe responsibility to competent adults for their conduct, or to declare them incompetent. I don’t think the latter move is justifiable.