Imprisonment for non-intentional transmission of HIV: can it be supported using established principles for justifying...

In England, Wales and Scotland, those who unintentionally transmit HIV through sexual intercourse are at risk of criminal prosecution, and furthermore may be at risk of imprisonment under the Offences Against the Person Act 1861. These sentences have ranged between 1 and 10 years. There has been a long debate on whether this is an acceptable use of the law, and indeed whether those who transmit HIV in this manner should be subjected to legal proceedings. Previous debate has embraced the rhetoric of shared responsibility and public health. In this paper, we wished instead to apply traditional justifications for sentencing (including retribution, deterrence, rehabilitation, incapacitation and reparation) to imprisonment for non-intentional transmission of HIV through consensual sexual intercourse. We argue that when these principles are applied to imprisonment for this 'crime', we are unable to justify imprisonment sufficiently, and therefore, that imprisonment is a misguided response to HIV transmission.