Ghent University

Graduate Student, Criminal Law and Criminology

PhD candidate

Thesis Title: Criminal law and sexually transmitted diseases

About

Problem definition and research objectives

Research on the link between sexuality and criminal law has always been abundant. Still, some lacunae remain, among which are the criminal law aspects of sexual behaviour that carries the risk of sexually transmitted diseases (STDs), such as HIV.

The topic definitely holds social relevance since all sorts of unsafe sex, and consequently all kinds of infections with STDs, seem to occur quite frequently. Often, an STD is transmitted as a result of carelessness. Excrescences, however, do exist. “Bare backing”, “bug chasing” and “Russian roulette” can serve as illustrative examples.

Although STDs are primarily a medical issue, they also give rise to several legal problems concerning, for example, civil law, insurance law, social security law, et cetera. Since infections with some STDs, such as HIV, can grossly affect (physical) integrity, the link between sex that carries such risks and criminal law is quite an obvious one. In several countries people have already been prosecuted and/or convicted on that account, whether on the basis of HIV-specific criminal laws or sometimes on the basis of the general criminal law provisions. In Belgium, the first complaint arising from the sexual transmission of HIV was recently filed. From a scientific perspective, however, this issue has not yet been thoroughly studied, certainly not in our country.

Consequently, the main research question of my doctoral research is: “How can and should sex that carries the risk of an STD be characterized from a criminal law point of view?”


Substantive criminal law sub questions

1. Can criminal law be brought into action against sex that carries the risk of an STD, taking the right to privacy into consideration? After all, the concept of privacy not only encompasses the right to keep ones state of health under cover but also protects the right to sexual liberty. This sub question assesses the limits of the repressive public interference in this field.

2. Are the existing general criminal law provisions applicable to sex that carries the risk of an STD? This question de lege lata will be answered taking into account criminal law theory and criminal law philosophy. I will study the constituent elements of the criminal law provisions. Moreover, I will explore the relevant provisions concerning attempt, participation, criminal responsibility of artificial persons, recidivism, concurrence, sanctions and questions of extraterritorial jurisdiction.

3. If the existing general criminal law provisions would turn out to be deficient when it comes to addressing sex that carries the risk of an STD, the question arises whether there is a need for a different (criminal law) framework. If so, what would be the outline of such a framework? This question de lege ferenda will be answered taking into account criminal law theory and criminal law philosophy. At this point, I will also conduct a comparative legal study in order to determine how other countries deal with this issue as well as to be able to formulate recommendations for the Belgian situation.

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