By Sherry F. Colb
In my column for this week, I consider the justice question whether people who knowingly transmit HIV through unprotected sex with unknowing partners ought to be subject to criminal punishment for their behavior. In the column (spoiler alert!), I conclude that for various reasons, criminalization is not appropriate.
In this post, I want to consider the implications of a competing impulse that I have, which leads me to believe (some of the time, at least) that knowing transmission of HIV (or any other serious illness) through unprotected sex is a grievous harm that deserves to be punished.
One important reason for opposing criminalization is the view (which I share) that it is more likely to deter people from getting tested than it is to motivate them to share their HIV status with prospective sexual partners. If that is true, then I might believe that people do, in general, deserve criminal punishment for knowingly transmitting HIV to unknowing victims, and I might still decide to sacrifice a legitimate retributive objective to serve the greater good (by protecting more people from transmission).
The impulse to sacrifice retribution in order to maximize social welfare helps explain a variety of phenomena that are quite distinct from the criminalization of HIV.
One example is the decision to give diplomatic recognition to a political figure who has previously engaged in violent, reprehensible conduct but who provides the best or only hope for bringing peace to a particular country or community. One might point to such a figure as Gerry Adams of the I.R.A. as an example of this phenomenon.
Another example might help explain at least some opposition to capital punishment. On this approach, a person might view those murder convicts sentenced to death as entirely deserving of death (and perhaps even the tremendous anxiety associated with time spent on death row, a separate feature of suffering associated with the death penalty). Nonetheless, a person might think that the costs of having a death penalty (including such things as the monetary expense of heightened security, the perception by victims' families that if their loved one's killers are not executed, this reflects a devaluation relative to other victims whose killer's do get sentenced to death, and the risk of wrongful execution of an innocent) make such deserved retribution a luxury we cannot afford.
A third example might account for some people's opposition to all sorts of censorship. Apart from the libertarian approach to free speech (in which we view every individual as having an entitlement to voice his or her views, no matter how hurtful or otherwise destructive), there is also a position that holds that some speech truly is so outrageous and harmful that its speaker deserves to be punished. Yet we choose not to punish these speakers because we worry that the impact of such censorship on the public would be to inhibit valuable expression by people. On this account, we have an instrumental reason to refrain, for example, from punishing hate speech, on the assumption that such speech is nonetheless unworthy of protection.
And a fourth example will be familiar to Fourth Amendment scholars (and others): the exclusionary rule. One might take the view that admitting illegally obtained evidence against a criminal suspect is perfectly appropriate and well-deserved by the criminal suspect (particularly if the crime is serious). Yet one might nonetheless support suppression of evidence taken in violation of the Fourth Amendment as a means of maximizing police compliance with Fourth Amendment requirements (that searches and seizures be reasonable), a compliance that will maximize the privacy of innocent individuals in the future, at the cost of reducing the odds that a guilty person will be rightfully convicted of his crimes in the present.
In practice terms, of course, if one opposes criminalization of HIV transmission, opposes capital punishment, supports awarding statesman status to former terrorists, opposes censorship, and supports the exclusionary rule, it may not ultimately matter that much whether one opposes/supports such things for instrumental reasons or for justice reasons. The bottom-line position is what it is.
Yet the difference is significant, in my view, because it acknowledges the justice claims that those on the other side of the issue make, in a way that other sorts of opposition do not. For a proponent of the exclusionary rule to say, for example, that a murderer is no less deserving of punishment by virtue of a police officer's failure to obtain a search warrant before entering the murderer's house, is to share with the exclusionary rule opponent the view that there is something fundamentally wrong with suppression. This means that if one can address the instrumental concerns of the proponent in some other way, then one might be able to persuade the proponent to comne over to the other side. Sharing fundamental assumptions about justice and injustice might accordingly prove to be significant not only to theory but to consequences as well.