Abstract

In this paper, the author attempts to provide some answers about the ‘right thing’ to do in cases where a person has wilfully or negligently exposed another person to HIV or does not tell a partner about their HIV status prior to engaging in sexual relations. To do this, the author introduces and summarises four main theories of justice and demonstrates that each is found within the Constitution of the Republic of South Africa, making them highly relevant for the practice of law in the country. The analysis reveals that in cases where there is legal culpability in the transmission of HIV, all four theories of justice and key principles of the Constitution are violated, suggesting criminalisation would be appropriate in those cases. However, the paper also illustrates that criminalising HIV transmission would likely lead to outcomes that would also violate those same conceptions of justice as well as other values important to South Africans, such as compassion and effective public health. The paper shows that arguments rooted in justice theory and the Constitution of the Republic of South Africa could be made both for and against the criminalisation of HIV transmission.