Should the transmission of sexually communicable diseases be criminalised?

Rishika Khare

To address the spread of sexually communicable diseases, many jurisdictions have resorted to the criminal law approach; through specific lawmaking or by extending the protection under general criminal law. They criminalise the instances that involve inflicting harm on the victims through intercourse, where victims did not consent to the risk of transmission. This approach has often been criticised for discriminating against the vulnerable infected persons and for perpetuating their social stigma. This article assesses if the transmission of sexually communicable diseases should be criminalised. For the purpose, the article will specifically focus on the HIV and its transmission. The article discusses the factors of public health, harm and risk in transmission, non-disclosure, consent, reckless and intentional transmission, to find if transmission should be criminalised. It concludes to direct that despite criminalisation as an approach, resources of the state should focus on providing education, awareness and access to medical facilities.

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