The authors are grateful to Valerie Sanchez for invaluable research assistance.Google Scholar

The call for criminalization is becoming more fashionable daily, across the political spectrum. See, e.g., Grady, A haunting issue for '88, Boston Globe, June 3, 1987: 19, col. 5 (noting that potential presidential candidate Mario Cuomo, the governor of New York, “would make it a crime to knowingly transmit AIDS”); Safire, Failing the tests, New York Times, June 4, 1987: A27, col. 5 (“Should states make it a crime to knowingly transmit [AIDS] with malice aforethought? You bet”); Tax change advocate suffering from AIDS, New York Times, June 10, 1987: A29, col. 4 (quoting California tax revolt leader Paul Gann, infected with AIDS through a blood transfusion, as saying that people who knowingly transmit AIDS “should be tried for murder, because if you give it to someone, it's a death sentence”).Google Scholar

See Turner, , The military battles a new biological weapon: AIDS, National Law Journal, May 11, 1987: 6; AIDS-infected soldier faces trial for having sex, Boston Globe, June 4, 1987: 14, col. 3. In announcing the court-martial, Army officials called it the first such case in military or civilian courts. Civilian criminal codes likewise typically define aggravated assault as assault “with a deadly weapon.” See, e.g., Model Penal Code §211.1(2)(b).Google Scholar

See Cummings, , Charges filed against blood donor in AIDS case, New York Times, June 30, 1987: A18, col. 1.Google Scholar

In this paper we use the term “person with AIDS” as defined by the Centers for Disease Control: someone who has one of eight sorts of diseases that indicate the suppression of the immune system where there is no other explanation for that suppression. See Masur and Macher, Acquired immune deficiency syndrome (AIDS), in Mandell, , Douglas, , and Bennett, , eds., Principles and practice of infectious diseases, 1985: 1670. We use the term “AIDS carrier” or “HIV carrier” to describe someone who is infected with the human immunodeficiency virus that is believed to be the cause of AIDS but who has not yet contracted any of the diseases. Some AIDS carriers exhibit symptoms of “AIDS-related complex.” Others do not exhibit such symptoms, although they would test positive on the HIV-antibody test. See id.: 622; Weber, et al., Three-year prospective study of HTLV-III/LAV infection in homosexual men, Lancet, May 24, 1986: 1179. Other infected individuals would not even be detected by the test, which yields false negatives as well as a substantial number of false positives. See Counsel on Scientific Affairs, Status report on the acquired immunodeficiency syndrome: HTLV-III testing, Journal of the American Medical Association 1985, 245(10): 342–45.Google Scholar

For example, calls for quarantine led in November 1986 to a California ballot measure that would have subjected those testing positive for HIV to reporting and isolation. The measure was defeated by a large margin. Proposition 65 on the California Ballot (November 4, 1986). But calls for quarantine persist today. See, e.g., Roberts, AIDS alert: Politicians awaken to the threat of a global epidemic, New York Times, June 7, 1987: sec. 4, p. 1 (noting that evangelist and presidential candidate Rev. Pat Robertson has advocated quarantine). When “quarantine” is mentioned in connection with AIDS, it might imply any of a range of possibilities, from public incarceration to confinement to one's home, from total isolation from others to prohibition only of sexual contacts, to name but a few possibilities. We regard all of these methods as grossly overbroad and possibly unconstitutional. The issue of quarantine is more fully discussed in Curran, WJ, Clark, ME, Gostin, L, AIDS: Legal and policy implications of the application of traditional disease control measures, Law, Medicine & Health Care 1987, 15(1–2): 27–35.Google Scholar

See Model Penal Code part 1, vol. 1, p. 233 n.4.Google Scholar

See Model Penal Code §2.02(2). The degree of criminal intent required for a particular crime is central in determining whether criminal liability exists and, if so, how harshly it will be punished.Google Scholar

See Model Penal Code §2.02(2)(c)-(d).Google Scholar

The Model Penal Code acknowledges that legislatures may choose to impose such liability. Model Penal Code §2.05.Google Scholar

See, gen., Morissette v. United States, 342 U.S. 246 (1952). As Justice Jackson wrote in Morissette, strict liability crimes “do not fit neatly into … common-law offenses [for they] are not in the nature of positive aggressions or invasions … but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.” Id.: 255–56.Google Scholar

We generally use the pronoun “he” to refer to AIDS transmitters in this paper. We do so because male-to-male and male-to-female sexual transmission has been to date more prevalent than female-to-male. Female-to-female sexual transmission is virtually unknown though not impossible. Of course, non-sexual transmission is more symmetrical across gender lines. Where appropriate, our use of the pronoun “he” is intended to be generic.Google Scholar

Model Penal Code §210.2(1)(b).Google Scholar

The common law punished deaths caused in the course of such independent felonies as “felony murder.” The Model Penal Code abandons the strict liability aspects of the felony murder rule but still gives some weight to the fact that the homicide was accompanied by a violent felony. It substitutes for the felony murder rule a presumption that the recklessness and the extreme-indifference-to-the-value-of-human-life requisite to murder exist when a homicide is committed during the course of certain enumerated felonies, one of which is rape. See Model Penal Code §210.2(1)(b). Recklessness and extreme indifference are presumed if the defendant “is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.” id.Google Scholar

By endangering many people for profit, the prostitute might well satisfy the standard of extreme indifference to the value of human life that separates reckless murder from reckless manslaughter.Google Scholar

Such a rapist might well be guilty of felony murder as well as rape under the common law, or of reckless-plus-extreme-indifference murder under the Model Penal Code approach.Google Scholar

See Barnes, DM, Grim projections for AIDS epidemic, Science 1986, 232: 1589–90.Google ScholarPubMed

Model Penal Code §210.4, comment #3, at p. 86. The defendant's failure to perceive a risk that he will cause death must involve a “gross deviation from the standard of care that a reasonable person would observe in the actor's situation.” Model Penal Code §2.02(2)(d).Google Scholar

The Model Penal Code explicitly makes it an offense purposely to help another to commit suicide. See Model Penal Code §210.5(2).Google Scholar

See, e.g., State v. Minster, 486 A.2d 1197, 1200 & n. 5 (Md. Ct. App. 1985) (listing states).Google Scholar

The Model Penal Code also makes it a crime recklessly to endanger another person. See Model Penal Code §211.2. This crime is classified as less serious than negligent homicide. The reckless transmitter of AIDS might be liable under this provision, as well as for attempted murder or assault, without regard to whether the victim died.Google Scholar

Homicide is always punished as a felony, with sentences ranging from one year to life in prison, or the death penalty in those states that retain it. Most states punish attempted murder less severely than they would punish the equivalent acts if the victim had died, and they never utilize the death penalty for attempt. Assault is normally a misdemeanor punishable by no more than one year in prison. If assault is “aggravated” by conduct manifesting extreme indifference to the value of human life (for example, by use of a deadly weapon), it may be punished for a longer term as a felony.Google Scholar

The common-law doctrine of “factual impossibility” might provide a defense if one's belief that one was an AIDS carrier proved in fact to be mistaken, so that one's “attempt” proved futile. Many jurisdictions, however, have abandoned that defense because it makes liability of equally culpable persons turn on a fortuity. For example, the Model Penal Code provides for attempt liability where one “purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.” §5.01(1)(a).Google Scholar

Model Penal Code §5.01(1)(b).Google Scholar

Model Penal Code §211.1 (1)(a). The common law labeled such crimes of physical injury “battery” and treated attempted battery as “assault.” We here take the Model Penal Code's approach of labeling as “assault” what the common law would have called “battery.”Google Scholar

Model Penal Code §211.1(2)(a). Use of a deadly weapon is the typical conduct manifesting the required indifference. Aggravated assault was one of the crimes charged in the military court-martial case described at the beginning of this paper, on the theory that the AIDS virus itself is a deadly weapon.Google Scholar

See Model Penal Code §2.11(2)(b)(permitting consent as a defense to serious bodily injury only where such injury is a “reasonably foreseeable hazard” of participation in sports or athletic contests).Google Scholar

176 Eng. Rep. 925 (W. Cir. Ct. 1866). The Army court-martial described at the beginning of this paper provides a modern analogue. In that case, the Army dropped the aggravated assault charge with respect to the defendant's sex acts with a soldier who was aware that the defendant had tested positive for AIDS. The Army pursued only the charges involving the defendant's sex acts with two other soldiers who had not known that fact. Army will try AIDS carrier, National Law Journal, June 15, 1987: 7, col. 1.Google Scholar

See Model Penal Code §2.11(2)(b)(2).Google Scholar

Indeed, if lack of information about a sexual partner's disease vitiates consent, the same analysis would turn consensual sexual intercourse into rape where disease is transmitted in the process—a metamorphosis that shows that the point goes too far.Google Scholar

See, e.g., Texas Rev. Civ. Stat. Ann. §44190–1, 6.01–6.07 (making it a third-degree felony for a person to knowingly conceal or attempt to conceal the fact that he or she has been exposed to or is a carrier of a communicable disease that constitutes a threat to the public health, and a misdemeanor for a person with such a disease to attend or attempt to attend a public or private place or gathering).Google Scholar

See, e.g., Cal. Health & Safety Stat. §3198 (making it a misdemeanor for any person afflicted with a venereal disease to willfully expose himself to others, and for any person so to willfully expose another person afflicted with such disease); N.Y. State Sanitary Code, §§2307, 2309 (making it a misdemeanor for anyone who knows she/he has an infectious venereal disease to have sexual intercourse with another); Fla. Stat. Ann. §§384.01, 384.02 (making it a second-degree misdemeanor for any person infected with venereal disease to have sex with a person of the opposite sex or to expose another to infection); Colo. Rev. Stat. §25-4-401 (making it unlawful for any person who has knowledge or reasonable grounds to suspect that he is infected with a venereal disease to willfully expose or infect another, or to knowingly perform an act that exposes or infects another person with venereal disease).Google Scholar

See Idaho Code §39–601 (classifying AIDS, ARC, or HIV as venereal diseases and prohibiting persons with these diseases from knowingly or willfully exposing another to the infection).Google Scholar

See, e.g., Fla. House Bill 484 (would designate AIDS as a venereal disease and prohibit infected individuals from transmitting it to others); Fla. Senate Bill 576 (would make it a misdemeanor for anyone with a sexually transmitted disease to have sexual intercourse); Pa. House Bill 1787 (would make it a misdemeanor for a person who knows that he has AIDS to transmit the disease to another person through sexual contact; second or subsequent offenses would constitute a felony); Ga. House Bill 1187 (would define AIDS as a venereal disease).Google Scholar

Under some of the definitions of the offenses, using precautions might constitute a defense; under others, even using precautions and obtaining the informed consent of one's partner could not exculpate one from the crime of having sex while infected.Google Scholar

It would be difficult to make a priority of punishing persons already dying from AIDS. Some carriers, however, are symptomless.Google Scholar

We define “intimate sexual activity” broadly to include all consensual sexual contacts. It does not include rape. How to treat prostitution is unclear. At first glance, the public interest appears unambiguous and the private interest minimal in the case of the prostitute who continues to ply his or her trade after a diagnosis of AIDS. Prostitution involves multiple sex partners by definition, and is premised on money, not love. On the other hand, people other than prostitutes also have sex with multiple partners, and prostitutes may be more likely than others to institutionalize the use of precautions against AIDS transmission as a business practice.Google Scholar

The important interest in avoiding governmental regulation of intimate sexual activity of course applies no matter how the AIDS virus was acquired. The person who acquired it through intravenous drug abuse or through a blood transfusion has the same interest in a future intimate sex life as the person who acquired it initially through sexual intercourse.Google Scholar

Justice Blackmun articulated such a theory in his dissent in Bowers v. Hardwick, joined by three other Justices. Id. at 2851. Choice concerning sexual activity might also be protected under the First Amendment as expression. The Court's decision in Stanley v. Georgia, 394 U.S. 557 (1969), lends indirect support to both these theories. Stanley held that it violated a person's right to privacy to convict him for possessing pornography in his own home. Stanley expressly linked the value of privacy to the liberty of conscience and self-expression protected by the First Amendment.Google Scholar

Such a theory seems to underlie the Supreme Court's general efforts to locate the right to privacy in either the liberty clause of the Fourteenth Amendment or in the Ninth Amendment, which protects fundamental rights not explicitly enumerated in the Bill of Rights. The premise of either approach is that our society cannot be truly free if government interferes in such matters as whether and when we breed, see, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942) (striking down law providing for mandatory sterilization of recidivist felon), or how we choose to arrange our family household, see, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down conviction of grandmother for living with two non-sibling grandchildren, in violation of local zoning ordinance). Under a Fourteenth Amendment approach such interference would be incompatible with bordered liberty”; under a Ninth Amendment approach, it would transgress the boundaries of a sphere we never ceded to government, such as the sphere of family and reproduction.Google Scholar

Accordingly, even if such regulation did implicate a constitutionally protected right to privacy, it might still be upheld as closely serving a compelling state interest. The only time in the nation's history that the Supreme Court has upheld a severe deprivation of liberty on such a ground was in its decisions upholding the internment of Japanese-Americans during World War II. See Korematsu v. United States, 323 U.S. 214 (1944). There the compelling factor was war, and even so many have since considered the Supreme Court deeply wrong in its judgment that herding Japanese-Americans into camps was necessary to avert the danger of wartime espionage. See, e.g., Irons P, Justice at war, 1983; Grodzins M, Americans betrayed, 1974; Rostow, The Japanese-American cases—A disaster, Yale Law Journal 1945, 54: 489. But epidemics, like war, may be held to create compelling circumstances.Google Scholar

In other words, the key question in assessing whether laws regulating AIDS transmission violate constitutionally protected liberty or privacy will concern means more than ends. It will ask not whether fighting AIDS is important but, rather, whether each law is closely tailored to the fight. See, gen., Note, The constitutional rights of AIDS carriers, Harvard Law Review 1986, 99: 1274. 1279–92.Google Scholar

Those who hold such a view would presumably advocate also abstinence from drug use, at least illegal drug use. The problem is that such a prohibition would be without effect, given that the law already forbids such drug use.Google Scholar

Such a law would be even more unrealistic and unjustifiable if it criminalized sexual acts other than vaginal and anal intercourse. AIDS is not transmittable by hand-to-genital contact. To date, there is likewise no evidence that AIDS is easily transmittable by kissing, even though experts have not excluded the possibility of such transmission. See, e.g, Altman, Health experts find no evidence to link AIDS to kissing, New York Times, June 8, 1987: B6, col. 2. Doubt similarly exists about the transmissibility of AIDS through oral sex. Curran, et al., supra note 6. Fear of AIDS transmission may of course induce people to shift their sexual practices away from sexual intercourse and toward these other modes. Indeed, evidence of sharply reduced rectal gonorrhea rates among gay men suggests that many in that community have done just that. Centers for Disease Control, Self-reported behavior change among gay and bisexual men—San Francisco, Morbidity and Mortality Weekly Report 1985, 34(40): 613–15; Schecter, MT et al., Changes in sexual behavior and fear of AIDS, Lancet 1984, 1:1293; Centers for Disease Control, Declining rates of rectal and pharyngeal gonorrhea among males—NYC, Morbidity and Mortality Weekly Report 1984, 33: 295-97. But we believe the state should not seek to rule out sexual intercourse altogether for AIDS carriers for life.Google Scholar

Some believe that criminal stigma should be reserved only for conscious wrongdoers, because those who fail to take care out of ignorance or carelessness cannot be deterred by the criminal law. See, e.g., Williams G, Criminal law, 1953:120–25. The more plausible position, however, would seem to be that imposing criminal liability for negligence can deter by providing an additional motive to “take care before acting.” Model Penal Code §2.02, comment at 126–27; see also Han HLA, Punishment and responsibility, 1968: 152–54.Google Scholar

The fact that these social consequences now attach to a positive AIDS test is the principal reason that mandatory AIDS testing is controversial. Public health officials widely fear that if mandatory testing is imposed, fear of these consequences will drive many of the infected “underground.” See, e.g., Boffey, Health officials fear “sideshow” efforts will hurt AIDS fight, New York Times, June 8, 1987: B6, col. 2. If these consequences could be eliminated, much opposition to testing would disappear. It is not the invasion of bodily privacy itself that is objectionable; just as the Supreme Court long ago held that mandatory smallpox vaccination did not unconstitutionally invade liberty or privacy, so a blood test involves minimal intrusion. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). What is feared is, rather, that the test will be a vehicle for discrimination, whether against currently unpopular groups at high risk, such as gay men and intravenous drug abusers, or against a new social underclass of AIDS carriers of all descriptions.Google Scholar

Indeed, the most widely used voluntary test might be one that is entirely anonymous—for example, one that could be used at home, like a home pregnancy test. The problem with such an innovation might be, however, that it would be administered without the opportunity for immediate counseling about its meaning and about how a positive tester should now behave.Google Scholar

Senator Ted Kennedy recently introduced such an antidiscrimination measure as part of a proposed Senate bill dealing with AIDS. 100th Cong. S. 1220.Google Scholar

By contrast, a jury might convict an AIDS carrier of negligent AIDS transmission even if he used a condom during sex. The statistics on pregnancy despite use of condoms as a contraceptive suggest that condoms break between 2 and 20 percent of the time. Fischl, MA et al.. Evaluation of heterosexual partners, children and household contacts of adults with AIDS, Journal of the American Medical Association 1987, 257: 640–44. A jury might deem the risk of sex even with a condom unreasonable.Google ScholarPubMed

A requirement of disclosure seems more realistic as applied to sexual transmission in intimate relationships than to cases of transmission by needle-sharing, where the parties may be strangers. Needle-sharing is not an intimate act in the sense that sexual relations are. Accordingly, use of precautions alone might appropriately negate the offense of transmission by needle-sharing.Google Scholar

It is often suggested that failure to inform one's sexual partners of an AIDS risk is not blameworthy because they assume the risk by having sex at all. We do not think that approach is appropriate. Because only one party has access to the relevant information, it does not unduly burden him to have to disclose it. Having sex should no more mean one is assuming the risk of disease than going to a singles bar and having a drink should mean one is assuming the risk of date rape. See generally Estrich S, Real rape, Cambridge: Harvard University Press, 1987.Google Scholar

The problem is that the chance of actually contracting AIDS after exposure to the virus increases with increased exposure. American College Health Association, AIDS—What everyone should know, Health Information Series, 1985: 2.Google Scholar

A statute that required the use of condoms would in a sense be the inverse of sute statutes forbidding contraceptive use, such as the one struck down in Griswold v. Connecticut, supra note 39. Surely an exception to a condom requirement would have to be made for persons trying to become pregnant. The precise scope of any such exception would no doubt be the subject of heated debate.Google Scholar

See, e.g., United States v. Cincotta, 689 F.2d 238, 243 & n. 2 (1st Cir. 1982); United States v. Jewell, 532 F.2d 697 (9th Cir. 1976); see also Model Penal Code §2.02(7) (“knowledge [of a fact] is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”) Of course, the “willful blindness” theory will tend to collapse knowledge into recklessness unless the defendant is shown to have known other facts suggesting a very high probability of the “fact” he was trying to avoid.Google Scholar

To the extent this is not the case, the solution is not to broaden the category of persons covered by the criminal law here but, rather, to provide for adequate counseling in conjunction with voluntary tests.Google Scholar

The best precaution for needle-users would be not reusing needles. But that is a requirement that only the wealthy addict may be able to meet. Unless free new needles were widely available at public expense, therefore, a reasonable attempt to sterilize a needle before reuse should be enough.Google Scholar

If so, it would be better for the government to remove from the market the condoms that are thought inadequate, rather than to broaden the criminal law.Google Scholar

The law elsewhere as well imposes separate penalties on those who cause harm to others while doing something that is already criminal—for example, one who kills while committing the crime of drunk driving may also be convicted of manslaughter.Google Scholar

The Supreme Court's recent decision in Bowers v. Hardwick, 106 S. Ct. 2841 (1986), may be interpreted by police as legitimating such discrimination. In that case, the Supreme Court held that a statute criminalizing anal and oral sex violated no constitutional right to privacy when applied to same-sex contacts, while leaving open whether it would do so when people of opposite sexes commit precisely the same sex acts.Google Scholar

Indeed, the Supreme Court this term upheld as constitutional a federal statute providing for the pre-trial detention of persons deemed likely to be dangerous to the community if freed on bail. United States v. Salerno, 107 S. Ct. 2095 (1987). The Court's tolerance of such a measure as permissibly “regulatory” rather than impermissibly “punitive” may arguably signal a willingness to tolerate the preventive incarceration of suspected AIDS carriers even in the absence of any conviction of guilt.Google Scholar

Of course, the danger of such selectivity will diminish as AIDS spreads further through the heterosexual population. Moreover, such selectivity might be unconstitutional if it is sufficiently systematic. While it is doubtful that anti-gay discrimination in the application of the law would be strictly scrutinized, as would racially selective prosecution—see, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886) (striking down the selective prosecution of Chinese-owned laundries under a facially neutral ordinance purporting to regulate all wooden laundries)—it might be struck down even under minimal scrutiny as arbitrary and irrational, provided the selection could be shown to be motivated by “mere negative attitudes [toward], or fear [of]” gay men. See City of Cleburne v. Cleburne Living Center, 105 S. Ct. 3249, 3259 (1985) (invalidating the exclusion of a group home for the mentally retarded from a residential neighborhood where no reason beyond irrational fear and hatred of the mentally retarded had been demonstrated).Google Scholar

See Bowers v. Hardwick, 106 S. Ct. at 2848 n. 2 (Blackmun, J., dissenting) (listing states).Google Scholar

While the plaintiff in Hardwick was arrested and jailed overnight, he was not ultimately prosecuted, convicted, and sentenced. See id. at 2848 (Powell, J., concurring). The very absence of convictions under the sodomy laws made it difficult for civil liberties lawyers to find any better test case than Hardwick with which to challenge the validity of those laws.Google Scholar

See, e.g., Brief of Amici Curiae American Psychological Association and American Public Health Association at 19–27, Bowers v. Hardwick, 106 S. Ct. 2841 (1986) (arguing that sodomy laws disserve the public health by interfering with AIDS treatment, research, and education).Google Scholar

See Hermann, DHJ, Liability related to diagnosis and transmission of AIDS, Law, Medicine & Health Care 1987, 15(1–2): 36–45.Google Scholar

See Top health official urges frank talks to young on AIDS, New York Times Oct. 23, 1986: 1, col. 6.Google Scholar

For example, Markowski, allegedly a prostitute, charged with attempted murder for selling his blood even though he knew he was infected with AIDS, said he did so because “when you have to survive you'll do anything.” Cummings, supra note 3.Google Scholar