Using criminal prosecutions as punishment would only be justified in a handful of cases, and is irrelevant to the vast majority of cases of HIV exposure. Courts have stated that, rather than punishing after the fact, deterring harmful conduct is, and should be, the primary function of criminal sanctions. But those few HIV-positive people who deliberately infect others are unlikely to be deterred by the remote threat of imprisonment. The history of prohibitions on alcohol, drugs, prostitution, and gay sex shows that the criminal law is ineffective in preventing such intimate and complex human behaviour. In most cases where the criminal law has been used against AIDS carriers there was no motive or advanced planning.
Spontaneous behavior driven by human anguish, despair, or passion is difficult to prevent.
History indicates that punitive and coercive policies are counterproductive to promoting public health. Criminal prosecutions are unlikely to deter risky sex or needle sharing, but will instead deter those most at risk from getting tested, which in turn will prevent access to medical treatments and support services after a diagnosis of HIV infection. If risk activities by HIV-positive people become criminal offences, this will inhibit open discussion about reducing risks and changing behaviour, especially if counselors or public health personnel are required to report those suspected of engaging in unsafe sex or sharing needles to police. Criminalization of an Epidemic. The limited benefit to be gained from prosecutions must be weighed against the social and economic costs of applying state sanctions.