Is It Really a Risk? The Parameters of the Criminalisation of the Sexual Transmission/Exposure to HIV

This article considers whether there is a rationale for criminalisation of the sexual transmission and exposure to HIV by reviewing the harm principle. The article then provides a comparative jurisdictional analysis of transmission and exposure in three particularised jurisdictions: England, Canada and the US. It will be established that few jurisdictions truly consider the risk of serious harm, and thus lack a theoretical foundation for criminalisation. A comparison of relational judicial precepts will follow the discussion of extant law in each country. The final part of the article proposes a bespoke new legislative framework that will criminalise certain types of transmission and exposure.