P4.118 HIV Nondisclosure: A Right to Know?

Abstract

<h3></h3> In many jurisdictions, it is a crime for an HIV-positive person to have sex without first disclosing his or her serostatus. Such prosecutions persist in spite of substantial evidence that they do not reduce transmission or risky behaviour. I argue that an underexamined sexual autonomy rationale undergirds such prosecutions. U.S. and Canadian courts have held that nondisclosure of HIV violates a partner’s right to “informed” sexual consent, transforming otherwise consensual sex into a crime akin to rape. The sexual autonomy rationale draws on feminist insights about sexual coercion and consent, but has not yet been subjected to rigorous feminist critique. This Article presents the first-ever comprehensive analysis of identifiable nondisclosure prosecutions in the United States, and advances a critical race feminist challenge to the premises and application of this rationale. Criminal law does not protect a general rule that sexual consent be “informed”: while HIV nondisclosure is a crime, almost all other forms of sexual deception_often presumed to be normative lies men tell to women_are lawful. HIV disclosure laws are also so under- and overinclusive with respect to transmission risk that they seem better designed to reduce anxiety about HIV than to reduce transmission. Furthermore, criminal protection of this interest is selective. Although most sexual transmission of HIV_and, likely, most nondisclosure_takes place between men, most defendants are men accused of nondisclosure to women. Racialized and sexual HIV stigma intersects with gendered assumptions about sexual victimisation so that, when a woman has noncommercial heterosex without knowing that her partner had HIV, she, unlike other uninformed sexual partners, may be seen as a victim of sexual crime.