HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception—including deceptions that may jeopardize the partner’s health—are lawful; rape law expressly accommodates an expectation that men may lie to get sex from women. Neither public health nor retributive considerations adequately justifies singling out HIV from other, permitted forms of sexual deception. Moreover, most HIV transmission and nondisclosure takes place between men, but a large majority of prosecutions involve men accused of nondisclosing to women. The arbitrary inclusions and exclusions of HIV criminal laws, their inconsistency with their ostensible rationales, and the striking disparities in HIV prosecutions all raise suspicion that discriminatory impulses may be at work.
Our laws tend to frame HIV as a crime that matters most when it disrupts expectations that non-drug-injecting heterosexuals should be immune to anxiety about HIV. These laws situate HIV as fairly benign when contained within stigmatized populations such as gay men, intravenous drug users, Africans, and sex workers. When HIV-positive people transgress these boundaries and cause heterosexual men and women to worry about HIV, this transgression is often punished as a crime, even when the behavior poses no transmission risk. HIV laws and their implementation raise concern that discriminatory fallacies about race, gender, and sexuality may shape perceptions of whether, when, and why HIV is a crime.