1 Published by Springer as: Ryan, S, (2007) Risk-Taking, Recklessness and HIV Transmission: Accommodating the Reality of Sexual Transmission of HIV Within a Justifiable Approach to Criminal Liability, Liverpool Law Review, 28 (2), 215-247. DOI: 10.1007/s10991-007-9020-7 The original publication is available at www.springerlink.com RISK-TAKING, RECKLESSNESS AND HIV TRANSMISSION: ACCOMMODATING THE REALITY OF SEXUAL TRANSMISSION OF HIV WITHIN A JUSTIFIABLE APPROACH TO CRIMINAL LIABILITY * Samantha Ryan ABSTRACT: This paper examines the issue of justifiability of risk-taking with regard to the transmission of HIV. It considers a number of factors, such as seriousness of risk, likelihood of risk occurring, social utility of conduct involved, ability to use precautions and victim awareness of the risk and willingness to accept it, which combined help to determine whether the taking of a risk is reasonable or not. It argues that by considering the issue of justifiability in this way, it is possible to accommodate the wider social, psychological and public health realities of HIV. It further argues that a criminal law which fails to take account of such considerations is not only overly broad in its application but ultimately risks punishing those who are not in fact deserving of punishment. KEY WORDS: HIV transmission, justifiability, precaution, risk-taking, seriousness and likelihood of risk, social utility INTRODUCTION Since the turn of the twenty-first century the imposition of criminal liability for the transmission of HIV has become an extremely topical and controversial issue in the UK. 1 This is not surprising given that criminal prosecution for transmitting HIV, * Lecturer, Newcastle Law School, University of Newcastle upon Tyne. I would like to thank the two anonymous reviewers for their comments on an earlier draft. 1 See C. Strickland, “Why Parliament should create HIV specific legislation” [2001] Web Journal of Current Legal Issues; M. Weait & Y. Azad, “The Criminalisation of HIV transmission in England and Wales: Questions of Law and Policy”, (2005) 10 HIV/AIDS Policy & Law Review August 2005; D. Warburton, “A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour by HIV+ Individuals” (2004) 68 Journal of Criminal Law pp. 55 -77; Terrence Higgins Trust, Criminal Prosecution of HIV Transmission April 2006, available from http://www.tht.org.uk/infromationresources/publications/policystatement/prosecutionofhivtransmission .pdf , accessed on 23 November 2006. The issue has also been considered in a wider context, see R.