HIV,Trust and the Criminal Law

Abstract

This article explores the legitimacy of criminalising nondisclosure of HIV-positive status to sexual partners. Its principal aim is to propose a new offence that criminalises such non-disclosure when it constitutes a breach of trust. In defending the proposed offence, the article argues that the criminal law has a legitimate function in penalising breach of trust when the breach causes both personal and social harm. The article also explores whether the existing offences of s. 20 of the Offences Against the Person Act 1861 and rape (s. 1 of the Sexual Offences Act 2003) are suited to criminalising non-disclosure, and concludes that they are not. The article additionally considers the arguments against the criminalisation of non-disclosure advanced by various commentators and argues that its proposed offence avoids the concerns expressed. The article concludes that the proposed offence is both a morally justified and practically realistic way of criminalising non-disclosure of HIV-positive status.