A comparative jurisdictional analysis of the criminalisation of the sexual transmission/exposure of HIV: a new legislative framework

Hughes, David (2015) A comparative jurisdictional analysis of the criminalisation of the sexual transmission/exposure of HIV: a new legislative framework. Doctoral thesis, Northumbria University.

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Abstract

This thesis explores the criminalisation of the sexual transmission/exposure to HIV by drawing upon the legislative and judicial precepts of the criminal justice systems
of England, Canada and the United States of America. The criminalisation of the transmission/ exposure is contentious within these jurisdictions and the aim of this work is to address these fundamental issues by investigating the disparate approaches to inculpation.

To be able to achieve this aim the study uses a comparative analysis that sets out the extant position of the law in each country and extrapolates theoretical underpinnings to criminalisation. This denotes that the defendant’s awareness as to their sero-status; the effectiveness of a complainant consenting to the risk of contracting the virus; and the type of conduct that is criminalised must be investigated. Further discourse as to alternative defences that may be accessible to the defendant is provided.

The work will examine the solutions to these issues from the other jurisdictions, and highlight the similarities and differences within each countries approach. It is argued that the law relating to the criminal transmission/exposure to HIV within all of the jurisdictions is generally deficient. None of the jurisdictions provide criminal laws that accede, in their entirety to philosophical, doctrinal or theoretical solutions to the problem. This study is unique as it draws upon the multiple jurisdictional approaches, as well as philosophy, theory and doctrine to provide the optimal pathway to legislation. Thus, the thesis proposes a legislative framework that is adherent to established liberal understandings of criminalisation. It also contributes to the understanding of the criminalisation of the transmission/exposure to HIV by offering a de novo legislative framework.

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