Abstract
The experiences of people living with HIV have been transformed over recent years. Advances in medical science have made the virus a manageable chronic condition, while eliminating the risk of onward transmission for those with access to treatment, something referred to as TasP (treatment as prevention) or U=U (undetectable equals untransmissible). More recently, the availability of PrEP (pre-exposure prophylaxis), alongside PEP (post-exposure prophylaxis), through the NHS has created the conditions for condomless sexual encounters to take place without the fear of HIV transmission associated with previous decades. Despite this, the criminal law has continued to frame HIV in terms of personal responsibility and bodily autonomy within the dominant narratives of danger, disease, and out-dated science. Doctrinal law has failed to keep pace with social and scientific change. Therefore, in this article, we provide a re-examination of the criminal issues relating to HIV transmission within this new landscape, arguing that it necessitates a shift in attitude, policy and doctrine. We specifically argue that HIV transmission does not meet the appropriate harm threshold to constitute GBH and that if criminal law is ultimately about preventing or regulating harm, the ongoing criminalisation of HIV transmission is counter to that aim.
Highlights
It is during another global pandemic—that of COVID-191—that the UK Government has announced significant changes to the availability of HIV pre-exposure prophylaxis (PrEP)[2] in England,[3] moving from limited availability via ‘trials’,4 to routine availability for the general population via the National Health Service (NHS).[5,6,7] As the search for effective responses to one pandemic continues to be the focus of policymakers and scientists, PrEP has become more widely available in efforts to prevent new HIV diagnoses
This sits alongside pre-exposure prophylaxis (PEP)[8] and treatment as prevention (TasP)[9] as an important pharmaceutical tool which has the potential to halt the transmission of HIV
This is acute in relation to the classification of the transmission of HIV as grievous bodily harm (GBH), as we argue that HIV transmission does not meet the appropriate harm threshold.[29]
Summary
It is during another global pandemic—that of COVID-191—that the UK Government has announced significant changes to the availability of HIV pre-exposure prophylaxis (PrEP)[2] in England,[3] moving from limited availability via ‘trials’,4 to routine availability for the general population via the National Health Service (NHS).[5,6,7] As the search for effective responses (e.g. vaccines) to one pandemic continues to be the focus of policymakers and scientists, PrEP has become more widely available in efforts to prevent new HIV diagnoses. Mainstream and communitybased media often reminds us that bareback is ‘bad’, and this moral policing is increasingly backed by legal interventions globally which seek to address the transmission of sexual infections, alongside regulatory regimes to control and censure visual depictions of bareback sex This framework sees the barebacking sexual citizen[25] forge new visions of what it is to be a homosexual in the 21st century, challenging narratives that have often been associated with equality and normative agendas (e.g. marriage, monogamy, and military participation).[26] while scholars have begun to understand this phenomenon through theoretical constructions of the homonormative and ‘good gay, bad queer’ analysis,[27] this article seeks to theorise and discuss how scientific and social developments might produce legal shifts which re-shape our understanding(s) and construction(s) of HIV as they relate to the criminal law. By analysing these different notions of ‘harm’, we argue that HIV no longer attains the severity required to constitute GBH, and that—by being unaware of the harms which criminalisation itself perpetuates, through stigma and trauma—the criminal law (as it stands) undermines core aspects of the liberal case in favour of legally regulating consenting sexual behaviours
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