Toward a Critical Criminology of HIV Criminalization

Abstract

Persons living with human immunodeficiency virus (HIV) (hereinafter, "PLHIV") face barriers at each stage of the criminal justice process, including prosecution for non-disclosure of HIV status. Justice institutions reinforce the stigma of HIV, which has perverse consequences for HIV prevention and treatment services. This article takes a critical criminological approach to "HIV criminalization," using the frames of queer criminology and epidemiological criminology to analyze both the punishment of "deviant" sex and the public health consequences of HIV stigma. Finally, this article offers a comprehensive consideration of the criminal justice barriers that PLHIV face in light of current criminological research, providing both mainstream and critical criminologists new insights into the social construction of deviance, legitimacy of institutions, definition of victims, and purposes of punishment.

Beyond criminalization: reconsidering HIV criminalization in an era of reform

“…The second strain of inquiry reveals how HIV-related prosecutions reinforce stigmatizing labels of people living with HIV as deviant and blameworthy [14 ▪ ]. By situating people living with HIV as deviant and their partners as ‘good victims,’ prosecutors and the media shape the public's understanding of who is to blame – and who gets to be a victim deserving of the public's sympathy – in cases of HIV exposure [15].…”

Public attitudes toward COVID-19 misbehaviors: Perceived seriousness of the misbehavior and perceived severity of the appropriate punishment

“…Drivers who disregard traffic laws (e.g., texting during driving, making an illegal turn) deviate from safe driving ( Malta, 2004 ), and place themselves and other drivers and/or their passengers at risk of physical injury or mortality ( Patil et al, 2006 ). Likewise, HIV-positive individuals who engage in unprotected intercourse violate laws requiring people living with HIV to disclose their HIV status before engaging in sexual intercourse or exchanging needles ( Cameron, 2009 ; Novak, 2021 ) and therefore risk the transmission of HIV ( Munro, 2007 ).…”

“…The very fact that these COVID-19-related “regulations” or “restrictions” are referred to as such and as not “criminal laws” suggests that they do not have the same legally binding power. Conversely, the dangers of damaged health and mortality due to reckless driving and reckless transmission of HIV are well established, and there are criminal laws prohibiting these types of reckless behaviors ( Cameron, 2009 ; Novak, 2021 ). Thus, considering that consensus regarding norms and values is associated with more negative attitudes toward offenses (e.g., Wenzel et al, 2021 ), it is possible to assume that violations of relatively established rules of behavior (e.g., traffic laws) will be associated with more negative public attitudes than violations of novel rules (COVID-19 restrictions).…”