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Why We Should Criminalise Dangerous Sexual Behaviour

Recent post from my blog:

Imagine that Herman has toxic radioactive waste from his laboratory. He decides to bury it in the ground next to his laboratory, knowing that it will expose the surrounding houses to dangerous radiation. As a result, Gertrude develops cancer some years later and dies at the age of 37.

Herman never intended to cause Gertrude to get cancer. He merely foresaw that his actions risked giving her cancer. However, the defence that he merely foresaw but not intend her developing a malignancy is empty. He should, ethically, be as blameworthy as if he put the waste in her food. He is responsible and blameworthy for her cancer. 

Nadja Benaissa, 28, of the German band, No Angels, is on trial in the city of Darmstadt. She has admitted to having unprotected sex with several partners knowing that she was HIV positive and without warning them (

"I am so sorry," she said. 

She denied deliberately infecting anyone. "No way did I want my partner to be infected."

Imagine that Herman said that he was sorry and “No way did I want Gertrude to get cancer and die at the age of 37."  This would be no excuse at all. He should be held fully accountable for her avoidable and foreseeable death.

But when it comes to HIV, this principle is resisted.  AIDS campaigners have resisted criminalising this kind of behaviour.

"By singling out HIV, it really promotes fear and stigma," one spokesperson said.

Of course there is an obvious response: hold everyone who foreseeably and avoidably exposes another person to risk accountable. It should not matter whether it is HIV, syphilis, TB, toxic waste or dangerous driving. When we know our behaviour could kill people, and fail to warn them to allow them to protect themselves, we should be held accountable.

Herman is a bad man.

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12 Comment on this post

  1. Ivor suffers from leprosy. He lives in a soceity which treats him with utter contempt. He is excluded from mainstream life and is spurred by other people. The state does little to support him or offer him treatment. He is widely regarded as responsible for his own illness. He is driven desparate by lonliness. He visits a cinema and infects other cinema goers. He is prosecuted and convicted and setnaced to prison where is subject to further horrors on account of his condition.

    Ivor may be a slightly bad man; his society is wicked.

  2. Jonathan: That’s an example of a tragic situation, in that a bad outcome is unavoidable irrespective of anyone’s choices. I can’t see how one could say say that society is wicked for requiring Ivor to avoid situations in which he could easily infect others, and for enforcing that requirement – what better choice could society make? If it enforced this rule in a way that made Ivor feel bad about himself unnecessarily, or otherwise failed in its duty to Ivor, it could take blame for that, but that doesn’t mean that it’s doing something wrong by simply having that rule.

  3. This is a question that is of great concern in Canada today. At present non-disclosure of HIV+ status while having unprotected sex has gotten people indicted for attempted murder and some are serving sentences of aggravated sexual assault.

    At any rate, there is, it seems to me, a fundamental question at the bottom of this: Is it the responsibility of the HIV+ partner to disclose, or is it the responsibility of the other partner to solicit disclosure? Should my partner disclose, or should I ask for disclosure of my own accord? The answer, I think is not very straightforward. How much stock should be put in assumed or implied information that is supposedly shared between sexual partners through silence?

    Case 1: You are in an abusive and exploitative relationship. You are HIV+ and know this. Your partner, who is ignorant of the fact, demands unprotected sex. If you refuse, outright or by demanding use of a condom, or disclose your HIV+ status you will likely suffer abuse and abandonment. Should the state compel your disclosure by criminalizing its absence? For my money, I have a much harder time distilling my gut reaction to this case as compared to the German pop star in the original post.

    Case 2: You have had unprotected sex outside of your main relationship and you suspect that you might have contracted HIV, but you have no confirmation of infection. If non-disclosure is criminalized, should you be compelled to get tested so that you will be able to disclose your status? Should I be compelled to get tested after every instance of unprotected sex? The is reason to believe that this is the logical extension of criminalizing non-disclosure.

    Also, consider this somewhat analogous thought experiment. Jon had unprotected sex with Linda. Linda was not on birth control and became pregnant. Is it sufficient for Jon to argue that he should not be responsible for the child based on the fact that Linda did not disclose to him that she was not using birth control? “I’m sorry, Your Honor, but I didn’t know she was off the pill and it never crossed my mind to ask.” Somehow that does not seem to cut it.

  4. Even if you’re right about the moral considerations, there may be good reason not to criminalize such behavior. For example, we might think that the sphere of consensual sexual relations (even if the consent is not fully informed with respect to the infectious diseases carried by one of the partners) is a delicate area in which we do not want the intrusion of law. This is not to say that this consideration trumps the moral considerations, but rather to call attention to a relevant feature of the case.

  5. I don’t see why we need the law to say anything in particular about sex. Why couldn’t there simply be a law against knowingly exposing someone to infectious agents without their consent? Of course, we’d have to take care of how we draw the boundaries – for instance, it would be hard to argue that someone with a cold who fails to cover up a sneeze on the subway should face criminal charges.

  6. The post does not really ask a question about ethics. There are two views of unethical conduct, depending on whether takes the agent to exercise free will and is therefore at fault, and whether one takes the agent as acting as a determined actor and it therefore simply a cause of harm who is the (or one) appropriate object of social or even legal sanction. The post really asks a different question — one about social regulation by social sanction, civil remedy or criminal punishment.

    The question asked by the post is this: What sort of dangerous conduct should be made a crime when it does another person harm? This is an old question and is very politicized. Populists tend to go far in the direction of criminalizing harmful acts, especially economic ones. Conservatives and classical liberals prefer civil remedies against harmful acts that do not go to threatening the social order or the ability of the state to defend itself against foreign enemies. Conservatives tend to like criminalization of such things as adultery, homosexual acts, incest and fornication, because they also threaten the social order.

    This liberal preference for civil rather than criminal remedies accepts that the poor and working class offender slips through the net of liability because they cannot respond in damages and can get out of responsibility with bankruptcy.

  7. Dennis I don’t understand why you think this is not a question about ethics. Isn’t any discussion about what people should or should not do, including what kind of behaviour should or shouldn’t be criminalised, within the scope of ethics?

    I think the question posed by Dmitri is crucial here, and also very interesting, but one could theoretically counter that Herman’s neighbours should not have assumed that there was no toxic radioactive waste buried in their neighourhood. It would doubtless be difficult to find anyone who would seriously take such a position, but why should we take a different position in relation to unprotected sex?

    Essentially there are two issues here (both ethical ones in my opinion): firstly how appalled should we be at this type of behaviour, and secondly should it be criminalised or not? Our answer to the first question will influence, but not determine, our answer to the second question; Dennis’s comments about traditional political preferences are relevant in the latter context, although I would add the words “they think” before the phrase “they also threaten the social order”.

  8. Peter: I think ethics and the consequences of unethical behavior are two different things, unless there is an ethics of collective or government action. That is, in this case, is there an ethics of punishment? Is there such a thing?

    Assuming there is an ethics of government response to bad conduct, it probably includes a concept of proportionality and, perhaps, one of practicality. I think risky sex is never ground for life imprisonment or the death penalty, but it may be ground for involuntary imposition of treatment and isolation from social intercourse. I also think that, if a bad act will not be deterred in any substantial way, by criminal punishment, that should count against criminal punishment.

  9. Thanks Dennis. I agree that there is a distinction between the ethics of individual behaviour and that of collective (including governmental) behaviour, but I would assume that the latter legitimately falls within the scope of what we call “ethics”. I’d be interested to know if anyone disagrees with this!

    I’ve suggested in response to other posts that (i) ethics and morality (which for me are basically synonyms) are a matter of choice, not of absolute truth, and (ii) that we might choose peace and prosperity as fundamental guiding principles for determining our moral/ethical positions. In which case I agree that with regard to punishment: proportionality and practicality (including effectiveness as a deterrent) are relevant considerations. By the way, what do you mean by “isolation from social intercourse”. Do you mean imprisonment (which could of course be less than life imprisonment) or something else? If the latter, how would it work? Are there existing examples of this?

  10. A few things. First, in response to Denis, it seems quite obvious to me that collective and governmental action are at the core of ethics. The entire branch of political philosophy is anchored in ethics. Furthermore, there is an ethics of punishment and it is codified in theories of justice, primarily of the retributive character.

    Secondly, I’d like to clarify that the “central” questions I have outlined in my previous reply are not meant to completely undermine arguments for the criminalization or punishment of knowingly exposing others to HIV, or similar transmission acts. Rather, they were meant to introduce considerations of the nature of wrong that is likely committed. That there is a wrong being committed, I have little doubt, as it is hardly controversial that being infected with a deadly disease is harmful and a wrong. But this still leaves open the question about what kind of wrong this is.

    The nature of this wrong, I think, depends heavily on how we divide the attribution of responsibility between the actors involved. Surely, there must some such distribution. It seems unreasonable to say that I am absolutely obligated to warn others of danger or to prevent harm to them. This would make me a slave to morality and to others. On the other hand, some level of consideration for my wellbeing seems required from others as it would be unreasonable, if not incoherent in a social context, to demand that I be absolutely responsible for my own wellbeing.

    Thus, we return to the question I posed above. What is the distribution of responsibility for personal and other- wellbeing in intimate relationships. The fault and wrongness will be divided in proportion to this distribution of responsibility.

    This extends far beyond sex. Suppose I am a member of a fight club (as in the popular movie). Setting aside the legality of this activity, should my opponents disclose their HIV+ status to me prior to the fight? Take another case. A gay teen is being bullied in school and is pressured into an after school fight. Should he disclose his HIV+ status before engaging? Should a rape victim disclose to her attacker that she is HIV+? Should the attacker?

    The question over the distribution of responsibility as I’ve outlined it has received, to my knowledge, sparse attention in the literature and yet it is fundamental in deciding cases like that of Nadja Benaissa.

  11. I think the overall argument “for” criminalization is evident and strong. Such a law would save other, innocent lives, from the uncharitable actions of others. OTOH, it seems to me that there will be cases where people simply do not understand that the disease is dangerous. That is, people who do not understand the nature of viruses and how they can be transmitted. Perhaps these are a matter of education, such as in some African nations where it is believed that AIDS can be cured via deflowering a virgin. I think even here, though this ignorance might be a mitigating factor, the law will serve as example. That is, if people do not understand the science behind a legal decision, they do understand the simple fact that it is illegal and punishable by whatever terms the society determines are just. Once such a law is passed, then mitigating factors begin to play less of a role.

  12. Peter questions whether the issue is discussed in the literature. There is a huge amount of legal literature on the issue. It takes up quite a large section of most textbooks discussion assaults. Matthew Weait’s Intimacy and Responsibility is one of quite a number of books looking at the legal and ethical issues raised and secifically how the responsibility should be shared.

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