Imagine that Herman has toxic radioactive waste from his laboratory. He decides to bury it in the ground next to his laboratory, knowing that it will expose the surrounding houses to dangerous radiation. As a result, Gertrude develops cancer some years later and dies at the age of 37.
Herman never intended to cause Gertrude to get cancer. He merely foresaw that his actions risked giving her cancer. However, the defence that he merely foresaw but not intend her developing a malignancy is empty. He should, ethically, be as blameworthy as if he put the waste in her food. He is responsible and blameworthy for her cancer.
Nadja Benaissa, 28, of the German band, No Angels, is on trial in the city of Darmstadt. She has admitted to having unprotected sex with several partners knowing that she was HIV positive and without warning them (http://www.bbc.co.uk/news/world-europe-10983227).
"I am so sorry," she said.
She denied deliberately infecting anyone. "No way did I want my partner to be infected."
Imagine that Herman said that he was sorry and “No way did I want Gertrude to get cancer and die at the age of 37." This would be no excuse at all. He should be held fully accountable for her avoidable and foreseeable death.
But when it comes to HIV, this principle is resisted. AIDS campaigners have resisted criminalising this kind of behaviour.
"By singling out HIV, it really promotes fear and stigma," one spokesperson said.
Of course there is an obvious response: hold everyone who foreseeably and avoidably exposes another person to risk accountable. It should not matter whether it is HIV, syphilis, TB, toxic waste or dangerous driving. When we know our behaviour could kill people, and fail to warn them to allow them to protect themselves, we should be held accountable.
Herman is a bad man.
As a responsible citizen, passive Gertrude had little defence against Herman's actions. Nadja Benaissa's sexually active partners were not passive victims. As responsible citizens, they could have worn condoms.
They may have subsequently passed on the infection through ignorance of their status. Does that make them culpable? If Nadja Benaissa had not been tested, would she be less culpable? If so, the result is the same. Being tested is an individual choice. Using or not using condoms is a shared choice.
Posted by: Chris | 08/19/2010 at 05:20 AM
Good point. But these things are complicated. One person could deliberately mislead another or even discourage or prevent condom use. That's why there should be strong criminal sanctions for failing to disclose.
You could mount the same argument for passengers injured by reckless speeding drivers. You could argue that they consented to the risk by getting in the car. Nonetheless, I think it is reasonable to punish the speeding driver for the harm that they cause their passengers.
Posted by: Julian Savulescu | 08/19/2010 at 07:16 AM
The difficulty is that it wasn't part of Herman's enterprise to poison Getrude, even though her toxification was foreseeable. Has she not been poisoned, Herman would not have felt thwarted. Although what he did was in some sense 'bad' there is still a morally qualitative difference between what he did and actually putting poison on Gertrude's plate. There is a further related question: when does risk become sufficiently remote to exculpate the putative perpetrator?
Posted by: Mark | 09/04/2010 at 12:27 PM
You're right Mr. Savulescu. And it's so logically clear than I can't understand why nobody does anything to protect us against irresponsible citizens such as Nadja or Herman...
Posted by: Daniel | 11/03/2010 at 06:49 PM