The criminalization of HIV Transmission across criminal law systems

Written by Laura Peng

Edited by Doris Peng

Laura Peng is an undergraduate student in the Dual Degree between Sciences Po and the University of British Columbia (UBC). She plans to major in ‘Economy and Society’ with a minor in law. Her academic interests include public health governance and the role of law in shaping sustainable economic systems.

The criminalization of HIV Transmission across criminal law systems

Since 2010, new HIV infections have decreased by approximately 40%, falling from 2.2 million to 1.3 million in 2024. This epidemiological trend reflects a major shift: far from constituting a public health threat comparable to that of the first decades of the epidemic, HIV has become an increasingly manageable infection, largely due to advances in medical science, prevention strategies, and access to treatment. Yet this decline in public health risk has not been accompanied by a corresponding retreat of criminal law intervention. In 2024, 156 states worldwide criminalized HIV non-disclosure, exposure, or transmission either through HIV-specific offences or through the application of general criminal law or had pursued prosecutions on this basis within the past decade.

This global trend, however, should not obscure the significant differences in how states use criminal law to respond to the same medical reality. While many legal systems rely heavily on criminal sanctions to address HIV exposure or transmission, others still reject criminalization altogether, considering it incompatible with fundamental rights and counterproductive from a public health perspective. These divergences suggest that the criminalization of HIV non-disclosure, exposure, and transmission is neither an obvious response nor the subject of an international consensus. Rather, it reflects distinct normative choices grounded in differing conceptions of the role and limits of criminal law. Precisely because no common approach exists, this lack of consensus provides a strong justification for a comparative criminal law analysis.

In legal terms, criminal law is generally defined as the branch of law that defines offences against the state and establishes the penalties applicable to those who commit them. Most legal systems are structured around a number of core principles governing the use of criminal punishment, including the principle of legality, the requirement of fault, and the protection of fundamental social and individual interests. From a more normative and political standpoint, however, the uses of criminal law vary significantly across jurisdictions. The scope of its intervention, as well as its relationship with other regulatory mechanisms - particularly in the field of public health - differs considerably depending on national contexts. The criminalization of HIV non-disclosure, exposure, and transmission therefore brings into sharp relief the plurality of contemporary uses of criminal law, making it a particularly compelling object of study for a law review.

Far from being a neutral criminal law issue, HIV intersects with the body, sexuality, illness, and social stigma. These dimensions lead states either to mobilize, or conversely to restrain, criminal law according to very different normative logics. HIV criminalization thus constitutes a revealing test case for the internal rationality of criminal law. Examining this phenomenon does not merely allow for the assessment of a sector-specific criminal policy; it also opens a broader reflection on the contemporary role of criminal law in the governance of social risks. Accordingly, the issue is not simply to observe that states resort differently to criminal law in response to HIV, but to assess whether such criminalization remains coherent with the principles that traditionally structure criminal responsibility.

This article therefore asks a central question: does the criminalization of HIV transmission or non-disclosure constitute a legitimate and coherent use of criminal punishment within the logic of criminal law?

Why does criminal law intervene in the context of HIV? The question of legitimacy

The criminalization of HIV transmission or non-disclosure is generally justified by objectives related to the protection of public health. States invoking criminal law intervention commonly emphasize the need to deter risky behaviour and more broadly to affirm the particular seriousness associated with HIV transmission. 

Although these objectives are widely shared, legal systems diverge significantly as to the point at which criminal law intervention is considered legitimate. In some jurisdictions, criminal punishment is viewed as a legitimate instrument of prevention, capable of regulating behaviours perceived as creating risks of HIV transmission. In others, however, criminal law is understood as a subsidiary mechanism whose legitimacy arises only when other forms of public health regulations prove insufficient.

Canada exemplifies an expansive conception of the legitimacy of criminal law intervention. Within this framework, criminal law is not limited to situations involving actual transmission of the virus but may also be mobilized where an individual is deemed to have exposed a sexual partner to a risk of HIV transmission. Criminal punishment is therefore conceived as a regulatory tool aimed at discouraging behaviours perceived as potentially dangerous. Such an approach nevertheless raises tensions with the principle of necessity - widely recognized in criminal law - according to which criminal punishment, as the state’s most intrusive instrument, should be used only as a last resort. In Canadian law, this requirement does not operate as an autonomous principle but is expressed through the constitutional principle of proportionality under the Canadian Charter of Rights and Freedoms. According to the Supreme Court’s consistent jurisprudence, “any infringement of fundamental rights, including the right to life, liberty, and security of the person (s. 7), must be justified, proportionate, and not excessive.” 

Yet the preventive rationale underlying HIV criminalization appears increasingly difficult to reconcile with contemporary scientific knowledge. Advances in medical research have profoundly changed the understanding of HIV transmission risk. The PARTNER2 study, published in The Lancet in 2019, reported no cases of HIV transmission among serodifferent couples engaging in condomless sexual relations where the HIV-positive partner maintained an undetectable viral load through effective antiretroviral treatment. In practical terms, when treatment suppresses the virus to undetectable levels in the blood, sexual transmission becomes effectively impossible.

These findings challenge the assumptions on which many criminal prosecutions are based. If the risk of transmission can be medically controlled - or even reduced to zero - the legal characterization of such situations as inherently dangerous becomes increasingly difficult to justify as it no longer responds to a ‘demonstrable’ danger. This creates a clear tension between evolving scientific knowledge and legal frameworks that continue to rely on earlier understandings of HIV risk. Instead, HIV criminalization may function less as a scientifically grounded mechanism of prevention than as a symbolic expression of social condemnation toward behaviours perceived as risky.

This expansive preventive conception of criminal law intervention is not, however, shared across all legal systems that resort to criminal law in the context of HIV. French criminal law reflects a more restrictive understanding of the legitimacy of criminal punishment, treating criminal intervention as a subsidiary and largely reactive response. This orientation is grounded in a constitutional framework in which the principle of necessity plays a structuring role. Enshrined in Article 8 of the 1789 Declaration of the Rights of Man and of the Citizen— according to which “the law shall establish only such penalties as are strictly and obviously necessary”—this principle requires that criminal law be used only where less intrusive mechanisms prove insufficient. Unlike in Canada, this requirement stems from an autonomous constitutional principle governing criminal punishment itself rather than from a broader ‘proportionality’ test. Within this framework, the management of HIV is primarily entrusted to public health rather than to criminal coercion.

The largely reactive character of criminal intervention in France is explained not only by the principle of necessity but also by the historical organization of HIV governance. From the early stages of the epidemic, the response to HIV was primarily structured around public health mechanisms focused on prevention and treatment. From the mid-1980s onwards, the French response relied on the scientific identification of the virus and its modes of transmission following its isolation in 1983 as well as the introduction of systematic screening tests and the development of antiretroviral treatments, beginning with AZT in 1986. The development of these health-based strategies has historically limited the perceived legitimacy of criminal law intervention in this area.

Some states have gone even further by deliberately excluding criminal law from the regulation of HIV transmission. Portugal provides a particularly clear example of criminal law restraint. Within a broader policy framework centred on harm reduction and decriminalisation—most notably reflected in the 2001 reform decriminalising drug use and possession—HIV is not treated as a specific criminal offence but is instead addressed primarily through public health policies focused on prevention and harm-reduction strategies.

The comparison between these different approaches highlights that the debate surrounding HIV criminalization does not primarily concern the objectives pursued—most legal systems invoke similar public health rationales—but rather the point at which criminal punishment is considered legitimate. These divergent approaches therefore reflect fundamentally different conceptions of the role of criminal law in the governance of health-related risks. 

Yet even where the legitimacy of criminal intervention is acknowledged, a further question arises: under what conditions should criminal responsibility be engaged in the context of HIV transmission or exposure? In particular, legal systems differ as to whether criminal liability should depend on the actual occurrence of harm or whether it may arise from the mere creation of a risk of transmission.

How does criminal law intervene?

A classic doctrinal question runs through criminal law theory: should criminal liability arise only when harm has actually occurred, or may it also be triggered by the creation of risk? 

Traditionally, criminal law has been structured around the repression of harmful conduct. As Joel Feinberg argued in ‘The Moral Limits of the Criminal Law: Harm to Others’, the criminal law is primarily justified by the need to prevent harm to others, particularly where fundamental interests such as bodily integrity or life are threatened. Over the course of the twentieth century, however, the scope of criminal law progressively expanded beyond the repression of completed harm toward earlier forms of intervention. This shift became particularly visible in the late twentieth century with the emergence of what sociologist Ulrich Beck described as the “risk society,” in which modern legal systems increasingly seek to regulate technological, environmental, and health-related risks before they materialize.

In legal terms, this evolution has been reflected in the growing use of mechanisms that allow criminal liability to arise even in the absence of realized harm. Attempt offences punish conduct that has begun but has not yet produced injury, while endangerment offences and other preventive provisions criminalize behaviour that creates a sufficiently serious risk to protected interests. Through these mechanisms, criminal law increasingly operates not only as a response to harm but also as a tool for managing socially significant risks.

The criminalization of HIV provides a particularly revealing illustration of how these different constructions of criminal liability operate in practice. In several legal systems, HIV-related prosecutions remain closely tied to traditional criminal law offences protecting bodily integrity. Within this framework, criminal liability typically arises only where the transmission of the virus — or at least a concretely identifiable danger to physical integrity — can be legally established.

The French legal system offers a clear illustration of this harm-based model. In the absence of HIV-specific criminal provisions, prosecutions rely on general offences contained in the French Criminal Code, particularly the offence of administration of harmful substances (Article 222-15 Penal Code), which punishes the administration of substances causing harm to another person’s physical or psychological integrity (in this situation it refers to the transmission of the virus through bodily fluids). In certain situations, courts may also rely on offences relating to intentional violence causing bodily harm (Articles 222-9 Penal Code). HIV-related conduct is therefore assessed within the classical framework of offences protecting bodily integrity, placing the emphasis on the existence of harm or on a sufficiently concrete threat to physical integrity.

A different configuration emerges in the United Kingdom, where criminal liability has been recognised in cases of reckless HIV transmission. Recklessness in this context refers to situations in which an individual knows they are HIV-positive, understands that sexual activity may carry a risk of transmission, and nevertheless proceeds without informing their partner. In English law, prosecutions for HIV transmission have been brought under the Offences Against the Person Act 1861, which contains two provisions relating to grievous bodily harm. Section 20 criminalises the reckless infliction of grievous bodily harm, while section 18 addresses situations in which such harm is inflicted intentionally. Unlike the French framework, which centres primarily on the existence of harm, English law explicitly incorporates recklessness as a basis for criminal liability. At the same time, judicial interpretation by the Court of Appeal in R v Dica and R v Konzani established that the transmission of HIV may constitute grievous bodily harm. As a result, the offence generally requires that transmission actually occur; mere exposure to risk without infection does not usually give rise to prosecution.

The shift toward risk-based liability becomes even more explicit in the Canadian legal framework. In Canada, prosecutions frequently arise not from transmission itself but from the non-disclosure of HIV status prior to sexual relations. Instead of using offences protecting bodily integrity, these cases are usually prosecuted as sexual assault. In R v Cuerrier (1998), the Supreme Court of Canada held that the failure to disclose HIV-positive status may constitute fraud vitiating consent to sexual relations, stating that “without disclosure of HIV status there cannot be a true consent.”  On this basis, non-disclosure may transform otherwise consensual sexual activity into criminal sexual assault. This reasoning was later refined in R v Mabior (2012), where the Court established that a duty of disclosure arises whenever there remains a “realistic possibility of transmission,” even where no infection ultimately occurs.

Within this framework, criminal liability is triggered by the existence of a legally constructed risk and by the conditions under which consent is deemed valid. The centre of gravity of the offence therefore shifts from the materialization of harm to the assessment of exposure to danger.

This development is not merely technical; it has important consequences for the internal structure of criminal responsibility. When criminal liability is grounded primarily in exposure to risk rather than in completed harm, the question of how fault is established becomes particularly significant. In other words, the expansion of risk-based liability raises a fundamental issue concerning the role of the mental element of the offence. The implications of this shift for the concept of mens rea will be examined in the last section.

The “erosion” of the offence’s mental element

From this perspective, the criminalization of HIV raises a deeper issue concerning the role of the mental element in criminal responsibility. 

Traditionally, criminal law is grounded in the principle of subjective fault, meaning that criminal liability should depend on the mental state of the person who committed the act. This mental element - commonly referred to as mens rea - generally takes the form of intent, knowledge, or at least an awareness of risk combined with a voluntary course of conduct. In this sense, criminal punishment is justified not merely by the occurrence of harm, but also by the presence of a culpable state of mind accompanying the conduct.

Classical criminal law theory reflects this principle through the structure of the offence itself, which combines two essential components: a material element (actus reus) and a mental element (mens rea). Both must normally be established before criminal liability can arise. As Andrew Ashworth and Jeremy Horder explain in Principles of Criminal Law, the requirement of a mental element functions as an important safeguard within criminal law, ensuring that punishment reflects personal blameworthiness rather than the mere existence of a harmful situation. In this way, the principle of mens rea embodies a broader commitment within criminal justice: individuals should only be punished when their conduct demonstrates a sufficient degree of personal fault.

However, certain legal constructions used in HIV-related prosecutions tend to disturb this traditional balance.  Where criminal liability is primarily based on exposure to risk or on the failure to disclose HIV status, the analysis of fault may shift away from the offender’s actual mental state and toward the objective characterization of the situation. Instead of asking whether the accused intended to transmit HIV or consciously accepted that risk, courts may focus on whether the conduct created a legally defined danger or involved a form of deception toward the sexual partner.

In such cases, the mental element becomes partially reconstructed around the objective risk created by the situation rather than around the offender’s subjective intention or awareness. The consequence is a possible weakening of the classical requirement of culpability. Criminal responsibility may become detached not only from an intention to transmit the virus, but sometimes even from the conscious acceptance of risk. In this sense, criminal law risks moving toward the punishment of risk itself and, indirectly, toward the punishment of a medical status perceived as dangerous.

The Canadian experience provides a particularly clear illustration of this development. In the absence of HIV-specific offences, the Supreme Court of Canada has addressed HIV non-disclosure through the legal framework of sexual assault. In R v. Cuerrier (1998), the Supreme Court of Canada held that failing to disclose HIV-positive status before sexual relations could amount to fraud vitiating consent. As the Court explained, “without disclosure of HIV status there cannot be a true consent.” As a result, sexual activity that would normally be considered consensual may be treated in law as sexual assault. This reasoning was later refined in R v. Mabior (2012). In these cases, the Court established that a duty to disclose arises whenever sexual activity involves a “realistic possibility of transmission.” Under this approach, criminal liability depends primarily on whether the partner’s consent was legally valid, rather than on proof that the accused intended to transmit the virus. The centre of gravity of criminal responsibility therefore shifts toward the existence of a legal duty to disclose and the notion of deception.

A number of scholars have criticized this approach for potentially transforming criminal liability into a form of quasi-objective responsibility. Under such a framework, severe criminal penalties may be imposed even in the absence of proof that the accused intended to cause harm. Public health and human rights organizations, including the Global Commission on HIV and the Law, have also expressed concern that overly broad HIV criminalization laws may punish individuals primarily because of their HIV status rather than because of clearly culpable conduct.

A different doctrinal approach can be observed in German criminal law, which provides an instructive counter-model. In Germany, HIV transmission—and in some circumstances exposure—is addressed through the general offences of bodily harm (Körperverletzung), particularly under sections 223 and 224 of the German Criminal Code (Strafgesetzbuch). Within this framework, criminal liability depends on a careful examination of the offender’s mental state. Courts generally require proof of intent (Vorsatz), or at least the conscious acceptance of risk known as dolus eventualis (Eventualvorsatz).

Under this doctrine, criminal responsibility arises only where the accused was aware of the possibility of transmitting the virus and nevertheless accepted that outcome as a potential consequence of their conduct. This subjective threshold functions as an important safeguard against criminal liability based solely on the existence of objective danger. By insisting on proof of a culpable mental state, German criminal law preserves the central role of mens rea in the structure of criminal responsibility. 

The comparison between these different approaches highlights a broader tension within contemporary criminal law. As legal systems increasingly seek to regulate socially significant risks, there is often pressure to expand criminal liability in order to intervene at an earlier stage. However, loosening the requirement of a mental element raises important concerns, since it may weaken the principle that criminal punishment should be based on individual fault. In this respect, the criminalization of HIV illustrates a wider challenge for criminal law: how far the law can go in preventing risks without abandoning the traditional requirement that criminal liability must remain grounded in subjective culpability.

Conclusion

Ultimately, the criminalization of HIV highlights a deeper tension within contemporary criminal law. As legal systems increasingly seek to regulate health-related risks, criminal law is sometimes pushed beyond its traditional focus on clearly established harm. The comparative perspectives explored in this article show that different jurisdictions draw this line in very different places. This suggests that the debate surrounding HIV criminalization is not only about public health, but also about the limits and role of punishment in managing social and medical risks. As medical knowledge continues to evolve and the risks associated with HIV become increasingly manageable, criminal law will likely be forced to reconsider when and whether its intervention in this area remains justified. 

In particular, it reveals a striking paradox: criminal law is often invoked in the name of protecting public health, yet its intervention may simultaneously weaken the climate of trust and openness on which effective HIV prevention depends — a tension that invites further reflection on the broader consequences of criminalization.

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