Throughout the HIV epidemic, criminal law has been invoked to deter and punish sexual transmission. The public health community has not favored the enactment of criminal laws specifically targeting people with HIV, nor endorsed the application of general criminal laws to HIV -but neither has it taken a vigorous stand against them. Meanwhile, governments continue to adopt HIV-specific criminal laws, and individuals with HIV continue to be prosecuted under general criminal law around the world. This comment argues that criminal law cannot draw reasonable, enforceable lines between criminal and non-criminal behavior, nor protect individuals or society from HIV transmission. In the protection of women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so.

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The widespread phenomenon of enacting HIV-specific laws to criminally punish transmission of, exposure to, or non-disclosure of HIV, is counter-active to good public health conceptions and repugnant to elementary human rights principles. The authors provide ten reasons why criminal laws and criminal prosecutions are bad strategy in the epidemic.

This article builds on two lectures (delivered in 2017 and 2019 at the University of the Western Cape and the University of Cape Town respectively) that addressed a a controversial and often overlooked crisis in the criminal justice system – the minimum sentencing regime.  The paper argues that minimum sentences are no response at all to curbing crime in South Africa and to making our people safe. The minimum sentencing regime is a misdirected, hugely costly and above all ineffective way of punishing criminals and dealing with crime. It has been an extravagant mistake of science, understanding, and policy and social response. The article summarises some of the arguments and considers why we are still stuck with minimum sentences when they are demonstrably useless and counterproductive. The author argues that the reasons lie in our broken history, in incoherent decision-making in our present political leadership, institutional incompetence, and the fact that minimum sentences themselves, through their false promise, divert us from finding more efficient solutions.