Retribution

This is the only one of the five criteria that is included in the Oxford English Dictionary definition of punishment13 and includes pain inflicted or rights (such as freedom of movement) removed in response to a breach of stated law or conduct. It is clear that the use of criminal law, and imprisonment, is retribution. However, in England and Wales, the law is applied for ‘reckless transmission’ not reckless endangerment such as in Scotland or some EU states. Therefore, it is not the risk being taken; rather it is the fruition of a risk that is punishable–even though the fruition cannot occur without the act. It is currently legal to take the chance, but illegal if a certain outcome occurs.

Reckless transmission is in essence a two-part crime—the crime solely rests within transmitting HIV even though there is no way to predict this transmission; however, the action to bring about the crime is the part over which the accused individual can exercise any form of influence. Retribution for this lies in a grey area between act and outcome—the individual is being punished for transmitting HIV, which has caused harm, but the action that caused the transmission is the action at which retribution is aimed. Although the crime logically must follow the action, there is some asymmetry in providing punishment if only a certain outcome occurs, whereas the retribution is being directed at the action that precedes the outcome.

However, in terms of being punished for a moral wrong, it is possible that retributive justice does provide some justification for imprisonment for HIV transmission. It can be argued that someone, who knew that they had HIV, willingly had sex with someone and did not try to mitigate that partner's risk through using condoms and/or antiretrovirals. Furthermore, the HIV positive partner did not tell their partner of their increased risk, compared to the background risk we all accept of contracting a sexually transmitted infection when engaging in sex. In sexual intercourse, both partners should be aware of protecting their own risks of acquiring sexually transmitted infections. However, there is a moral argument that the person with HIV is in possession of extra facts germane to the situation, which might alter their partner's conduct. Imprisonment may therefore have a justification if we accept that we are creating a punishment for what might be argued is a moral wrong that has brought harm to someone else (although this simple division of moral responsibility is not accepted by all; see Burris and Weait,14 who argue for greater understanding of the complexities of joint moral responsibilities). Even with this justification, imprisonment still seems severe compared to other punishments that may be considered.

Deterrence

This aspect is a key reason for the existence of law, in that a criminal sanction either applied or threatened potentially prevents a crime being committed through fear of retribution. On first view, it might seem that making it criminal to transmit HIV to an unknowing partner may increase the use of protection (such as condoms) among HIV positive persons and have a positive public health impact. However, this argument fails threefold, even before understanding that not all legal scholars accept that deterrence is effective.15 ,16 A report by Ritchie16 proposes that imprisonment only deters crime under very specific circumstances, and has a presumption of rational behaviour and choices by individuals.

The first failure is that the charge of reckless transmission can only be made if the HIV positive person was aware that they either were infected or probably were. This raises concerns about non-testing due to fear of reprisal, as well as fear of not seeking medical care for complications of HIV infection because of fear of being advised to take a test. There are some data from the USA suggesting that some individuals would avoid testing because of the risk of criminalisation;17 however, there are no UK-specific data yet.

The second failure is allowing the possibility of not recognising one's own responsibility for health, and creating an expectation that others should in fact assume that responsibility. By imposing legal sanctions against those who do not disclose, can I then assume as a passive being that I do not need to worry about condoms in a sexual encounter, because it is now illegal not to tell me if you have HIV? This eventuality has disastrous implications both in terms of public health and societal values. We argue that criminal sanctions for non-disclosure are counterintuitive to policies that place responsibility for someone's sexual health firmly with themselves and not someone else. We also argue that it will be difficult to prevent some members of society from interpreting the sanctions as a protection, and thereby cause them to be unwittingly reckless with their own safety.

The final failure of the aspect of deterrence is that it effectively singles out a whole community—those with HIV, and gives that community extra responsibilities and stigmata. The idea that the threat of legal implications will improve disclosure rates or use of condoms is at best naïve and at worst ignorant of the difficulties facing the community of people living with HIV.18 ,19 It does not take into account the emotional threat of rejection and stigmatisation in what can already be marginalised or small communities, nor does it acknowledge the threat of violence in both established relationships and single-time sexual encounters. Can this concept of increasing stigma really be compatible with any meaningful discourse of equality and fairness? Not all scholars agree that criminal sentencing can lead to deterrence, as individuals may not have the authority or agency to alter circumstances in which they find themselves, nor indeed does the threat outweigh the immediate benefit as Robinson and Darley20 propose.

Deterrence cannot be used as a justification for criminal sanctions or imprisonment, as its role is undetermined through evidence or even well-informed conjecture and has potential to actually increase public health risk rather than reduce it.

Rehabilitation

It is difficult to envisage a specific programme to rehabilitate those convicted of reckless transmission, especially given that the conviction is based on the laws of chance working against the defendant. Even if we accept that it would be possible to teach those convicted about the use of condoms and antiretrovirals, and the ethics of disclosure, there is no indication that any such programmes exist. The simple message of condom use, although valid, ignores the multifactorial pressures on someone living with HIV, alongside fears of stigmatisation and rejection by a sexual partner after disclosure.18 ,19 Even if there were such programmes, the reality of rehabilitation in prisons may be far from desirable, with 26.2% of those with convictions being re-convicted of crime within a year, and 58.9% within 9 years.21 There are no data available on the rate of actual condom or intended condom use after prosecution for reckless transmission, although equally there are no data on reoffending rates after release for this offence. The concept of prevention is now more complex with the use of antiretrovirals to reduce viral load, and thereby reduce the risk of transmission, and the intention to adhere to effective medication may be a marker of rehabilitation or reformed character. Nonetheless, none of this information is available, nor is there any sign of a dedicated rehabilitation programme and there is no other conclusion to reach except that rehabilitation cannot be used as a justification for imprisoning those who transmit HIV through sexual intercourse.

Incapacitation

This requires that someone be prevented from repeating the prohibited action. Imprisonment is not proven to prevent someone having sex while in prison, and certainly it will be more difficult to practise safer sex in prison as there may be a higher risk of coercion and sex work, as well as covert sex to prevent detection of the sex act. Although there are scant data relating to the exact rate of sexual intercourse within prisons, one survey found about 3% of inmates had had consensual sex with another man while in the prison.22 This survey also found that forced sex takes place within the prison environment. To compound these problems, condom provision to inmates is patchy, and requires an inmate to ask specifically for them to be provided—this raises issues of confidentiality and overtly discussing the possibility of having sex while incarcerated, which may not be possible for all people. Sexual healthcare provision within the prison setting is unlikely to be the same standard as sexual healthcare outside the prison service, and may well lead to the HIV positive individual receiving less care than they may need. Incapacitation cannot be used as a justification for imprisonment in this setting.

Reparation

The Criminal Justice Act (2003) embraces the concept of reparation to those affected by crime, and suggests this be considered in sentencing. Reparation in the Oxford English Dictionary is defined as the act of making amends for a wrong or loss; compensation.13 The act of seeing the accused imprisoned may be the correct form of reparation for some of those so affected. Some might believe service to a particular community as a suitable option, others might feel any restriction of liberty to be sufficient. Furthermore, reparation could be considered in monetary form, in which case, we might consider civil liability to be more appropriate. Consideration should be given to which form of punishment brings about the most meaningful reparation for those affected by transmission, if prosecution for transmission is to continue. Reparation may therefore provide some justification for imprisonment in HIV transmission, if we accept that imprisonment is the best form of reparation for this ‘wrong’.