Criminal Law Won’t Stop AIDS : Harsh Measures Are an Overreaction, and Counterproductive

Fears that out-of-control AIDS patients are seeking vengeance by exposing others to their virus have fueled demands for criminal sanctions. Approximately 30 criminal cases--alleging intentional transmission by biting, spitting, donating infected blood or having sexual intercourse--have been filed across the country against AIDS patients. Florida and Idaho have amended their laws to make it an offense to willfully expose another to the AIDS virus. Fourteen states have similar bills pending.

True, malicious transmission of a potentially lethal virus is just as dangerous as other behavior that criminal law already prohibits. There is no reason why persons in high-risk groups who endanger the public should be exempt from ordinary criminal law because the intent is to protect them and others against the spread of AIDS.

But, first, I will argue that what we think we know to be a crime is not the same as proving it in a court of law. And, second, I will argue that to create a criminal law applicable solely to AIDS carriers would be counterproductive and unfair from a public-health perspective.

There is an understandable outrage when any citizen acts maliciously to place another’s life in jeopardy. But we live under a legal system that respects constitutional rights, and it is necessary to prove beyond a reasonable doubt that the person intended to transmit the virus and did not inform his partner of his condition. It is nearly impossible to know what went on, and what was said, in the privacy of a sexual encounter that may have taken place years ago. Did the person know that he harbored the virus? Did he inform his sexual partner? Did they engage in “safer” sex? Has the partner had other sexual encounters or intravenous drug experiences with infected persons? These questions illustrate the difficulty of establishing guilt and innocence in a consenting sexual relationship.

Proving intent in cases of donation of infected blood is even more problematic. Is it possible, for example, in the case of a person who is destitute and gives blood for money to prove a specific intent to cause death? Joseph Edward Markowski, who is charged with attempted murder by the Los Angeles district attorney, said: “I was so hard up for money that I didn’t give a damn.” Should we not more aptly describe Markowski as a desperate man wanting to make a small sum of money for sustenance than a person who fully understood the consequences of his act, and intended to kill? Society may feel that he is evil and try to use draconian felony charges to seek revenge. But to what purpose? Markowski, it should be remembered, is dying from AIDS. The possibility of a long prison sentence would be an unlikely deterrence to his attempts to sell his blood.

If officials want to ensure that there are no future donations of AIDS-infected blood, there are other ways to achieve the objective. In most of the known cases of persistent donations, payments were involved. The practice of being paid for blood should be, as it is in much of Europe, abolished or severely regulated.

The cases in which criminal charges are brought against AIDS carriers are among the most vexing in law. But hard cases make bad law, and it would be counterproductive for states to follow the lead of Idaho and Florida by creating criminal statutes specifically applicable to AIDS. Widespread use of criminal law is a misdirected policy that will have no effect in curtailing the spread of AIDS. The overwhelming majority of cases of AIDS transmission are outside the reach of criminal law, and will go unnoticed. Those who do come to the attention of the police are likely to be the poorest and least articulate of those harboring the virus. This makes criminal law a lottery affecting primarily the most vulnerable.

History has shown that the use of criminal law has rarely had a positive public-health effect. Laws in nearly half the states making it a crime to intentionally transmit a venereal disease are widely regarded as a failure, and have fallen into disuse. The reason is that criminal law is ill suited to deal with a case in which there are sexual relations with a consenting adult who can and should take precautions to avoid transmission of the disease.

Transmission of a virus does not easily fit into the model of a guilty offender and an innocent victim.

Indeed, there is good reason to believe that widespread use of criminal law to prosecute AIDS carriers would make it more difficult to combat the disease. The argument that coercion will drive the epidemic underground is well rehearsed.

But it may be one thing to require a person to be tested, and quite another to make his or her sexual behavior a criminal offense carrying a stiff prison sentence: It will be very much in the interests of risk-group members not to know if they have the virus and not to discuss their sexual contacts with counselors or physicians. The last thing that public-health officials want is a population that is frightened of punitive solutions to their health problem.

Criminal court cases and statutes directed against AIDS carriers may appear to be getting tough with the disease. But in fact they divert our attention and resources from the policies that would make a real difference--focused education, testing, counseling and treatment for drug dependency.