Issues of criminal transmission of HIV

Abstract

Unlike many other countries, which apply existing criminal law offences to conduct that transmits HIV or risks transmission, Serbia enacted legislation that specifically prohibits and penalizes transmission of HIV as an offence against public health. Under Serbian law (according to Art. 250 of the Serbian Criminal Code), a person who knowingly endangers another person with infection by HIV virus may be guilty of a crime. The first issue this article addresses comes from the fact that this crime involves sexual act as an activity to which the participants are usually consenting. The author holds the position that a person engaging in sex does not need to know the seropositive status of the sexual partner, i. e. that the infected person does not have the obligation to disclose it’s HIV infection. However, if the infected person does not reveal it’s HIV-positive status, it should take some precautions to reduce the risk of transmission, usually by practicing safer sex. Only by such responsible act, infected person could avoid criminal liability. On the other hand, in contrast to other European penal codes, Serbian Criminal Code criminalizes not only the awareness of the risk of transmission (punished by imprisonment up to two years), but also the very transmission of HIV infection to another person, knowingly (punished by imprisonment of two to twelve years) or by (unconscious) negligence (punished by imprisonment up to three years). Such distinction raises questions on the matter of differentiation of the endangerment and attempted transmission, as well as the requisite mental culpability. Resolving these problems demands taking into account two important facts: low risk of HIV transmission through unprotected (vaginal, oral or anal) sex on one side and high mortality followed by long progression of the disease after the infection on the other side. The author studies different theories on distinguishing between dolus eventualis and conscious negligence (with an emphasis on the theory of acceptance of the consequences as the theory adopted by Serbian courts) and their applicability on transmission of HIV. The paper puts current criminal code provisions under analysis, emphasizing issues of attempted transmission and distinction between intended and negligent crime.