Pathogens, punishment and public health : some jurisdictions have not yet prosecuted exposure to, or transmission of, a pathogen during sexual activities - should they do so now?

Abstract

To address the central question, I consider the philosophical and theoretical perspectives relating to criminalisation and punishment, concluding that criminalisation may be justified on a standard harm analysis but that the decision as to criminalisation should be approached from the perspective of a hybrid philosophical model underpinning a minimum criminalisation approach. I then examine the operation of the criminal law in England and Wales and Canada, discussing the nature of the harm associated with criminalisation, the role of risk and recklessness and the issue of consent. This discussion exposes a number of issues and tensions in the operation of offences, but also speaks as to the underlying messages associated with criminalisation, the potential breadth of criminalisation in the sexual sphere, the exceptionalism associated with prosecution in the sexual sphere and the potential for broader criminalisation outside that sphere. The thesis then interrogates the position in the USA, analysing the influences which drove criminalisation, the range of responses, the exceptional response of specific statutes and the considerable difficulties associated with their use. I then analyse public health efforts, from both a voluntary and coercive perspective, which seek to manage the spread of pathogens using an alternative to the criminal law and additionally the negative effects of criminalisation on those efforts. Finally, I consider, using Ireland as an example, how criminalisation might be approached in a jurisdiction which has not yet prosecuted, specifically issues which should be borne in mind if prosecutions were to take place, and finally conclude that they should not, save in very limited circumstances. I conclude that criminalisation should be limited to circumstances where a person acts intentionally with reference to a pathogen and as such uses it as a weapon. In reaching this conclusion I identify the exceptionalism of criminalisation in the sexual context, originating with HIV, which speaks as to the Otherness of those infected and who may infect and the stigma which continues to be a driver of epidemics. I conclude that there has never been a satisfactory disquisition at a judicial level to explain the abandonment of a public health approach to pathogens, and, where specific legislative intervention has occurred, this is to be identified with the exceptionalism and Otherness associated with HIV. From a principled perspective, and using additional public health and related research, I conclude that the deployment of the criminal law in this area is maladaptive to the achievement of what should be the goal of our societies when dealing with pathogens – the health of the population. While criminalisation has developed in the context of sexually transmissible pathogens, there is no principled basis upon which criminalisation can be limited to that context; moreover, the criminal law is a blunt instrument which does not assist in the control of pathogen spread and in fact damages institutional and interpersonal relationships, structures and perspectives including normalisation which can assist in the development, implementation and maintenance of a community level response which has the maximum potential to control the spread of pathogens.