Reflections on public health and human rights in HIV criminalization: empirical review and analysis of court judgments in Taiwan

Countries around the world have enacted HIV-specific statutes that criminalize undisclosed exposure to HIV as a method for preventing and treating the disease. These policies presume that the punishment may encourage people to disclose their infection status to their sexual partners and forgo risky behaviors or increase protective measures, ultimately reducing HIV transmission. When the HIV/AIDS prevention and control law was passed in 1990, Taiwan enacted an HIV-specific statute to criminalize nondisclosure transmission of HIV through sexual intercourse or sharing needles. In the past three decades, the policy scope was extended to attempted acts even if the virus is not transmitted, and longer sentences were adopted, equivalent to sentences for aggravated assault. However, little is known whether such harsh criminal laws are effective HIV prevention methods or have potential negative impacts. This study searched for empirical studies discussing the effects of HIV criminal laws on public health from PubMed and collected twenty-six district court judgments involving 37 defendants charged with criminal HIV transmission from the Judicial Yuan Judgment Court Decisions Inquiry database. Empirical studies show that criminal HIV laws have an insignificant effect on changing risky behavior, failing to produce the expected epidemic prevention benefits of deterring risky behaviors. Although evidence is insufficient to demonstrate that criminal HIV laws hinder the willingness to test, health caregivers are worried about the accessibility of care. Some worry that the care of patients with HIV may still be impeded by stigma. A disturbing proportion of court cases in Taiwan have involved prosecution and punishment of attempted behaviors, including almost zero-risk behaviors. The intention to infect is not considered, while knowledge of the infection status is deemed sufficient. Phylogenetic analysis—the study of the genetic relatedness between HIV strains—has been adopted by courts as evidence to prove that HIV transmission occurred directly between the defendant and the witness. The severity of the sentences is also concerning. Policymakers should consider the benefits of criminalizing public health risks and evaluate the use of noncriminal prevention and control measures.