Transmission of HIV and the Criminal Law: Examining the Impact of Pre-Exposure Prophylaxis and Treatment-as Prevention

Melbourne University, Law Review Association
Publication Type:
Journal Article
Melbourne University Law Review, 2020, 43, (3), pp. 937-986
Issue Date:
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In its engagement with HIV, the criminal law has long attracted controversy, prompting protest, critique and calls for law reform. This article examines the impact of two major advances in the prevention of HIV transmission on criminal offences that apply to HIV transmission-related events, namely, treatment-as-prevention (‘TasP’) and pre-exposure prophylaxis (‘PrEP’). Where used, these two biomedical technologies and their associated practices bring with them the potential to radically reduce, even eliminate, the incidence of HIV transmission. If these benefits are made widely available, these advances will potentially bring about shifts in the ways HIV has been received by the criminal law, reframing current understandings of causation, risk and the seriousness of harm at the foundation of HIV transmission-related criminal offences. This article examines the likely impacts of these new practices and technologies of HIV. It argues that, where used, these new forms of HIV transmission prevention should radically reduce, and potentially eliminate, the incidence of HIV transmission-related criminal prosecutions for unintentional-transmission. However, it also concludes that these effects will likely be uneven due to the misalignment between those populations who are taking up these new prevention options and those who have been historically prosecuted for HIV transmission-related criminal offences.
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