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University of Wisconsin Law School




The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response.1 Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics,2 it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic.3 In the United States, the data is startling4 : 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men.5 In 2016, the CDC found that one in two Black men who have sex with men (MSM), one in four Hispanic MSM, and one in eleven White MSM will contract HIV.6

One of the many tools mobilized to curb the spread of HIV is the criminal law. In particular, the criminalization of HIV transmission and exposure sets out to penalize individuals who expose or transmit HIV to another person. New advancements in the science of HIV transmission suggest, however, that individuals on anti-retroviral therapy (ART) that have a low viral load are significantly less infectious.7 This new data, in turn, impacts the potential culpability of the individual living with HIV accused of exposing another to HIV.

In a novel contribution to the existing literature on the criminalization of HIV,8 this paper examines two cases, R v. Mabior9 and Rhoades v. State, 10 in which courts adjudicate the question of risk of transmission. This paper argues that while the court’s consideration of treatment and low viral load to mitigate culpability is a positive move forward, it is important to note that the pre-existing maldistribution of access to HIV treatment means that only some of the accused will benefit legally from these scientific advancements. This could have a disparate effect on racial minorities who have less access to ART and, in turn, will not have the capacity to mitigate potential culpability by arguing that they are less likely to transmit HIV.

This paper proceeds as follows. Part I draws on emerging scholarship on the carceral state to place the criminalization of HIV transmission and exposure in its broader historical and social context. Part II provides an overview of scientific advances on the risk of transmission. Part III considers two prosecutions of individuals living with HIV for exposing another to the virus and examines the role of scientific advances on risk in the courts’ deliberations on culpability. Part IV examines the distributional consequences of these decisions for those without access to ART.

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