Several countries have criminalized intentional and/or reckless
transmission of/exposure to HIV in consensual sex. Differences
among legal systems are observed on: whether exposure is enough or
actual infection is required; what kinds of sexual intercourse are
criminalized; whether disclosure is an affirmative defence or
whether non-disclosure is a constitutive element of the crime;
whether specific intent, in addition to knowledge of one's
HIV-positive status, needs to be established by the prosecution;
and whether use of condoms is an affirmative defence. There is no
agreement either among legal commentators on what is the 'best
law'. Consensual sexual relationships result in inefficiencies
attributed to information asymmetry. This is characterized by a sex
market wherein the participants are mainly HIV-positive. Yet,
criminal law is not the optimal instrument to deal with the
problem. Efficiency requires regulation of consensual relationships
be left mainly to tort law. The defendant is tortiously liable only
when there is infection (exposure is not sufficient). Informed
consent (not use of condoms) should be a defence.
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