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Indiana Law Journal

Document Type

Article

Publication Date

Fall 2012

Publication Citation

87 Indiana Law Journal 1517 (2012)

Abstract

This Article challenges the current legislative and scholarly approaches to HIV-exposure crimes and proposes an alternative framework to address their flaws. Twenty-four states criminalize consensual sexual activities of people with HIV. Current statutes and the scholarship that supports them focus on HIV-positive status, sexual activity, and knowledge of HIV-positive status as proxies for risk, mental state, and consent to risk. As a result, they are dramatically over- and underinclusive and stigmatize individuals living with HIV. Criminalization should be limited to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a culpable mental state as to transmission. This approach requires a fact finder to consider all evidence relevant to the risk of transmission and the victim’s understanding of that risk, a modest requirement that would nonetheless invert outcomes in numerous prosecutions. The Article contextualizes these arguments within the larger debate on the use of rules and standards in the criminal law and explores the implications of its approach for HIV-exposure criminalization as well as any offense drafted in response to an emerging threat.

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