• 16 June 2009

HIV/AIDS and the Law of Unintended Consequences

James B. McArthur - J.D. Candidate, Cornell Law School

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The proposition that mankind’s interaction with its environment can have unintended consequences would surprise few Americans.  For decades, ever since Rachel Carson published Silent Spring,1 the environmental movement has prepared us to understand that the choices we make can have complicated and unexpected effects on the world around us.  As the movement has grown, so have its concerns.  Some environmentalists focus on ecological degradation and biodiversity.  Others have focused on the sustainability of the western lifestyle, a concern reflected in critiques like Marc Reisner’s Cadillac Desert2 or Al Gore’s An Inconvenient Truth.3 An organic food movement has developed in response to concerns that pesticides, hormones, and industrial farming do not just harm the environment, but also the health of those who consume mass-produced food.  Writers such as Michael Pollan4 have popularized the notion that large corporations and government regulators, pursuing their own interests, have produced a system of food production that is not just unsustainable, but fundamentally unhealthy.  The concern with health also lies behind a newer worry, the latest example of the law of unintended consequences, this time affecting the ecology of the human body. 

Viruses and bacteria, many causing diseases long thought to be conquered, are developing resistances to some of the most commonly used drugs.  This is widely recognized as a growing public health problem, and not just by academics.  In 2007, the national media spent several days covering the case of Andrew Speaker, a lawyer from Boulder, Colorado.  Mr. Speaker flew to Europe even though he believed he was infected with drug-resistant tuberculosis, exposing many of his fellow passengers to the disease.  (The tuberculosis that infected Mr. Speaker turned out to be highly amenable to treatment, however.)

Another disease shows how serious drug resistance can become: HIV/AIDS.  HIV is unusually prone to modifications of its genetic code—it is a retrovirus, a class of viruses known for their error-prone method of replication.  This “mutability” means that HIV has developed resistance to treatments not just once, but over and over again in many different hosts.  Almost like clockwork, the virus has developed resistance to each new drug introduced to treat it.  Strains of the virus have developed that are resistant to two or more of the six classes of antiretroviral drugs used to treat HIV.  And recently, researchers have been forced to confront a new fear.  Scientists had believed that all HIV became less virulent as it adapted to antiretroviral drugs, because the virus was then less adapted to invading cells.  This belief was shattered in 2005 when researchers in New York presented a case study of a man they described as infected with an extremely virulent, multi-drug-resistant strain of HIV. 

But this only tells half the story.  In the years between its discovery in 1981 and 2001, AIDS killed 438,000 Americans.  By 2001, however, the disease had dropped out of the top fifteen causes of death in America.  In 1993, researchers at Harvard Medical School developed a treatment for HIV that would help deal with the disease’s ability to mutate.  The treatment was known as “HAART”: Highly Active AntiRetroviral Therapy.  HAART involves the use of a “cocktail” of at least three antitretroviral drugs, which overcome the virus’s ability to mutate.  It has been wildly successful in turning a disease that was once regarded as “inevitably fatal” into a serious, but treatable, chronic illness.

HIV/AIDS is a complicated disease.  My note, published in the Cornell Law Review, addresses one small portion of the law’s encounter with this complexity: the now obsolete criminal HIV-exposure statutes passed at the height of the AIDS panic in the late 1980s and early 1990s.  States enacted these statutes to address fears that the disease had become so widespread because individuals were intentionally infecting others.  A Presidential Commission deemed HIV-specific legislation necessary because the disease fell into a hole in the traditional criminal law: assault was insufficient to deal with a fatal disease, and murder was ineffective because the infector tended to predecease the infectee.  These statutes were never intended to deal with the complexity of the disease as it exists today.  But these laws are still applied: as recently as 2006, an Iowa man was sentenced to twenty-five years imprisonment despite not infecting a sexual partner with HIV. 

Although the statutes vary, they almost all share the following requirements: that the defendant know he or she is infected with HIV/AIDS; that the defendant expose another to HIV/AIDS, rather than infect that person; and that the defendant failed to disclose his or her HIV-infected status.  They are widely divergent in other ways: in the mental state that is required for conviction, in the conduct that constitutes exposure to HIV/AIDS, and in the penalties they impose.  At the time of their passage, and since, commentators have criticized these laws on several grounds.  They argue that if individuals who test positive for HIV infection are exposed to criminal prosecution, those at risk of infection will be less likely to be tested and seek treatment for the disease.  They also argue that the statutes spread misinformation about how HIV is spread.  But the most trenchant criticisms of criminal HIV-exposure statutes focus on their failure to meet the retributive goals of criminal law because they prohibit conduct that is not morally blameworthy.  Almost all of the activities prohibited by criminal HIV-exposure laws carry a surprisingly low risk of spreading the disease.

What these criticisms have failed to address is the changing nature of the HIV/AIDS epidemic.  These laws are increasingly obsolete.  The disease the statutes address no longer exists: it is an untreatable disease, a disease that leads inevitably to death, a disease of a single strain.  A completely untreated individual and an individual undergoing successful treatment with HAART both expose others to HIV infection when they have unprotected sex, but the risk of infection that the untreated individual is taking is orders of magnitude higher.  The statutes do not address this difference in culpability.  The prognosis of an individual newly infected with a multi-drug resistant strain of the virus is much lower than that of an individual newly infected with a non-resistant strain of the virus.  An individual who risks infecting others with a multi-drug resistant strain is much more culpable, but the statutes do not address this problem.  Under these statutes, disclosure of HIV status is a defense.  But what of the individual who discloses his or her status, but not that he or she is infected with a highly resistant strain?  Or who claims to be successfully undergoing treatment when he or she is not?  Without judicial reinterpretation, such an individual is innocent under these statutes.  Finally, almost all of these statutes provide for increased penalties compared with assault, but the consequences of HIV infection today are roughly comparable to the potential harms punished by assault—such as blinding.  Why have separate statutes when HIV infection has become, for most, a chronic illness?

I began this discussion of HIV/AIDS by referencing the environmental movement, and an essential truth it has emphasized—the law of unintended consequences.  This is really a restatement of a more essential truth about man’s interaction with biological systems: by their very nature, they are not inanimate.  They respond to us, and the choices we make, sometimes predictably, sometimes unpredictably.  Criminal HIV-exposure statutes are a case study in how ignoring this truth leads to bad law.dingbat



Copyright © 2009 Cornell Law Review.

James B. McArthur is a J.D. Candidate at Cornell Law School.

This Editorial is based on the following full-length Article:   James B. McAruthur, The Tide Turns: The Changing HIV/AIDS Epidemic And The Criminalization Of HIV Exposure, 94 CORNELL L. REV. 707 (2009). Click Here for the Full Version

  3. AN INCONVENIENT TRUTH: A GLOBAL WARNING (Paramount Classics 2006).

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