Disease on trial: Medical risk and molecular responsibility in HIV exposure and disclosure jury trials (1994–2015)

Abstract

More than 30 years have passed since the first HIV-specific criminal laws were enacted, generally making it a crime for people living with HIV to have sex with another person without disclosing their HIV-status. This study examines the tensions between medicine and criminal justice discourses in the application of laws governing a once terminal disease that medicine has transformed, over the past three decades, into a manageable condition. Has medical progress affected courtroom discussion? To answer this question, the authors analyze court transcripts from nine criminal HIV nondisclosure jury trials between 1994 and 2015 in Michigan, Tennessee, and Missouri. The analysis focuses on how shifting medical discourses of risk influence the way prosecutors and counsels construct notions of individual responsibility and, thus, culpability for HIV exposure. The authors argue that antiretroviral therapy and sophisticated clinical testing technologies have led to increasingly medicalized notions of criminal responsibility that they term ‘molecular responsibility.’ Over time, arguments over the defendant’s responsibility shift from the realm of morality to incorporate the defendant’s capacity and willingness to medically control the microbiological dimension of their condition.