Motivations For Punishing Someone Who Violates HIV Nondisclosure Laws: Basic Research and Policy Implications

Analyses of Social Issues and Public Policy, Vol. 00, No. 0, 2014, pp.
1--33
Motivations for Punishing Someone Who Violates

HIV Nondisclosure Laws: Basic Research and
Policy Implications
Alex Woody, Abby L. Braitman, Valerian J. Derlega,*
Barbara A. Winstead, and Brittany Neilson
Old Dominion University
Many U.S. states have HIV nondisclosure laws that require HIV-positive persons
to disclose their HIV status to new sexual partners. Mandating HIV disclosure
before sexual activity occurs is intended to deter unsafe sexual behavior and to
reduce the risk of HIV transmission. HIV nondisclosure laws are also intended
to punish HIV-positive persons who violate these laws. Vignettes were used to
examine if participants are motivated to punish someone who violates these HIV
nondisclosure laws. In three studies, we found that retribution but not general
deterrence was used to recommend punishment, especially when HIV nondisclosure was associated with harm being done to sexual partners. We also found that
preventing the law violator from reoffending played a role in recommending punishment, especially if the law violation was associated with considerable harm.
On the other hand, the expression of an apology to sexual partners was associated
with less severe punishment, based on the assessment that there was a relatively
low risk of the HIV law violator repeating this crime and, therefore, lower importance for removing him from society. The findings suggest that persuading the
general public and legislators to end the criminalization of HIV nondisclosure
will be an uphill battle.
The following cases illustrate how U.S. state laws are used to criminalize HIV
nondisclosure (Center for HIV Law and Policy, 2012):
Correspondence concerning this article should be addressed to Valerian J. Derlega, Psychology

Department, Old Dominion University, Norfolk, VA 23529 [e-mail: vderlega@odu.edu].
Acknowledgments: We thank Casey Iwai for his assistance in the data collection for Study 2. We
are indebted to Fredic I. Lederer (Chancellor, Center for Legal and Court Technology, the William and
Mary Law School) for his legal advice concerning HIV nondisclosure laws. Alex Woody is currently a
doctoral student at Ohio University and Brittany Neilson is a doctoral student at Texas Tech University.
We dedicate this paper to the memory of Kevin M. Carlsmith (19672011).
1
DOI: 10.1111/asap.12065

C
2014 The Society for the Psychological Study of Social Issues
Woody et al.
A man [in Indiana] was sentenced to two years imprisonment for HIV nondisclosure after not telling his female sexual partner he had HIV. (p. 277)
A man [in Montana] was charged with six counts of reckless exposure to HIV for
failing to tell his sexual partner about his HIV status. He was convicted of
four of the counts and sentenced to 30 years imprisonment. The partner has
since tested positive. (p. 279)
A man from Grand Rapids [Michigan] was charged with two felony counts of
sexual penetration of an uninformed partner, punishable by up to four year
imprisonment for each count, for allegedly having sex with two women without disclosing his HIV status. He was eventually sentenced to time already
served181 days. (p. 280)
A 36-year-old HIV-positive woman [in Michigan] pleaded guilty to failing to
inform her sexual partners of her HIV status. She was sentenced to time
already served, 68 days. (p. 287)
A 23-year-old HIV-positive man [in Washington] was sentenced to 87 months
imprisonment after pleading guilty to first degree assault charges. The man
engaged in anonymous, unprotected, and undisclosed sex with a man that he
met on manhunt.com. (pp. 281282)
Dozens of U.S. states have passed HIV nondisclosure laws that mandate
HIV disclosure to new sexual partners or to anyone who might be placed at risk
of HIV transmission (e.g., in commercial sex, needle exchanges, organ, blood
and semen donation). Many HIV nondisclosure laws were passed originally as a
result of the Ryan White Care Act of 1990. This legislation helped fund programs
to prevent and to treat HIV at state and local levels, but it also required states
to criminalize the intentional transmission of HIV. Many state laws exceeded
federal guidelines, including HIV nondisclosure as intentional transmission even if
the sexual partner was not infected (Center for HIV Law and Policy, 2012; Pasulka,
2012). The reauthorization of the Ryan White Care Act in 2000 no longer includes
the criminalization requirement, but state laws against intentional transmission
and nondisclosure of HIV are still in place (Pasulka).
Criminalizing HIV-related behaviors at the state level was also consistent
with recommendations by governmental and public health officials at the time
on how to reduce the spread of HIV. For instance, in 1988, the Presidential
Commission on the Human Immunodeficiency Virus Epidemic recommended the
criminal prosecution of HIV-positive persons who knowingly engage in behavior
which is likely to transmit HIV . . . (p. 130). Criminalization, according to the
1988 Presidential Commission, would serve to punish HIV-positive individuals
for actions that pose a significant risk of transmission to others (p. 130) and it
would deter others from engaging in high-risk behaviors.
Currently, however, public health advocates (e.g., Burris & Cameron, 2008;
Center for HIV Law & Policy, 2012, 2013; Galletly & Pinkerton, 2004, 2006;
Motivations for Punishment under HIV Nondisclosure Laws
UNAIDS, 2012) and various government officials (e.g., United States Conference
of Mayors, 2013; White House Office of National AIDS Policy, 2010) argue that
HIV-criminalization laws should be abolished. Reasons include the following: the
intentional transmission of HIV is infrequent, HIV-related statutes impose relatively harsh punishments for behaviors that would be considered legal if someone
were HIV negative or unaware of their HIV-positive status, the laws stigmatize
people with HIV, the laws punish someone with HIV even when there is little or no
risk of HIV infection. Public health experts are also concerned that criminalizing
HIV-specific behaviors (including HIV nondisclosure) may actually undermine
efforts to reduce the transmission of HIV. For instance, individuals who are at high
risk of HIV infection may choose to avoid or delay HIV testing given concerns that
their sexual behavior would be considered criminal if they tested HIV positive.
People with HIV are also much less likely to engage in HIV risk-taking behaviors
if they are aware of living with HIV (Marks, Crepaz, Senterfitt, & Janssen, 2005);
and they are less likely to transmit the virus than someone who is unaware of their
HIV-positive status (Marks, Crepaz, & Janssen, 2006). In 2013, Congresswomen
Barbara Lee (a Democrat from California) and Ileana Ros-Lehtinen (a Republican
from Florida) introduced legislation, H.R. 1843, the REPEAL HIV Discrimination Act, that would mandate the review of all federal and state laws governing
HIV-related criminal offenses.
HIV disclosure to sex partners could play an important role in the prevention
of HIV transmission. Nevertheless, research in the United States is inconclusive
about the effectiveness of HIV disclosure laws in increasing HIV disclosure to sex
partners and in encouraging safer sex. These studies focus on the effects on safe
sex based on whether or not a state criminalizes HIV nondisclosure or how much
knowledge HIV-positive persons have about HIV laws in their state of residence.
Burris, Beletsky, Burleson, Case, and Lazzarini (2007) found that the existence
(in Illinois) or nonexistence (in New York) of an HIV nondisclosure law was not
associated with the use of condoms among HIV-positive persons (either men who
have sex with men or male or female injection drug users) in their last sexual
encounter. Duru et al. (2006) also found, based on a national sample of men and
women with HIV, that the existence of HIV nondisclosure laws in participants
states of residence did not predict any sex without disclosure in the last six
months.
Two studies conducted by Galletly and her colleagues have focused on awareness of HIV nondisclosure laws. In New Jersey (Galletly, Glasman, Pinkerton, &
DiFranceisco, 2012a), awareness of this states HIV nondisclosure law was not
related to HIV disclosure, abstaining from having sex, or the percentage of new
partners who were informed about the research participants HIV-positive status
among a statewide sample of HIV-positive individuals. In Michigan (Galletly,
Pinkerton, & DiFranceisco, 2012b), knowledge of the HIV nondisclosure law did
not predict HIV disclosure to all sexual partners or abstinence from sex. However,
Woody et al.
knowledge of the HIV nondisclosure law among HIV-positive persons was positively associated with the proportion of new partners who were informed about
ones HIV-positive status.
Need for Research on Peoples Reactions to HIV Nondisclosure Laws
Despite the limited evidence for the effectiveness of HIV nondisclosure laws
in promoting HIV disclosure to sexual partners and/or preventing HIV risk-taking
behaviors, it is an open question whether the general public would support the
entreaties of public health experts to eliminate these laws. Our research contributes
to understanding the publics responses to HIV nondisclosure laws. If people are
willing to mete out punishment directed at someone who violates HIV nondisclosure laws (whether deterrence, retribution, or another goal underlies the motivation
for punishment), then the general public and their state representatives may resist
calls for the elimination of HIV-specific laws, despite the urging of public health
advocates and political leaders.
Moral Philosophies and Motivations to Punish HIV Nondisclosure Law
Violations
The philosopher Immanuel Kant argued for retribution or just deserts as a
justification for the punishment of criminal offenses. Kant (1790/1952) stated that
punishment can never be administered merely as a means for promoting another
good but rather that it should be pronounced over all criminals proportionate
to their internal wickedness (p. 397). The retribution approach assumes that the
magnitude of harm caused by the offense affects the motive to punish. In addition,
the presence or absence of a mitigating factor should reduce the moral outrage
associated with a crime and, in turn, the willingness to punish the criminal.
The utilitarian philosopher Jeremy Bentham (1843/1962) argued that the major justification for punishment should be to deter future wrongdoing. According
to the utilitarian or deterrence approach, the threat of punishment should deter
potential wrongdoers from committing a crime. Bentham wrote that general prevention ought to be the chief end of punishment, as it is its real justification
(p. 396). The focus for punishment of a specific offense is not to seek retribution
for the harm done by a particular perpetrator, but on making the criminal behavior
an unattractive option for potential wrongdoers. Based on the utility argument,
punishment should be more severe when the following conditions are met: the
probability of detecting a crime is relatively low and there is considerable publicity associated with the prosecution of the crime. A low detection rate for a crime
requires a more severe punishment to deter and a severe punishment in the context
of a well-publicized prosecution should effectively inform potential wrongdoers
of the high cost of crime.
Previous Research on Just Deserts and Deterrence as Motivations for

Criminal Punishment
Carlsmith and Darley (2008) have conducted several experiments to examine
the relative importance of just deserts (retribution) and deterrence (utility) in
assigning punishment for criminal offenses. Carlsmith, Darley, and Robinson
(2002) asked college students to read vignettes describing an intentional crime and
then to assign an appropriate punishment. Vignettes were designed to manipulate
factors associated with just deserts (severity of harm incurred by the crime and/or
mitigating factors) and deterrence (difficulty in detecting this type of crime and/or
publicity associated with the cases prosecution) as motivations for punishment.
In Carlsmith et al. (2002, Study 1), the researchers manipulated the just deserts
independent variable by the severity of the crime (illegally dumping toxic wastes
for profit versus embezzling from an employer) or the presence or absence of
mitigating factors (the illegal profits would be used to pay off gambling debts
or to send money overseas to underpaid company employees). High just deserts
meant that considerable harm was done in committing the crime or there were
no mitigating factors; low just deserts meant that little harm was done or there
were mitigating factors. The deterrence independent variable was manipulated by
the difficulty of detecting this type of crime (the crime was presented as hard or
easy to detect) or the amount of publicity and media exposure that the crime would
receive. High deterrence meant that the crime was difficult to detect or the court
case would receive maximum publicity; low deterrence meant that the crime was
easy to detect or the court case would receive minimum publicity.
Carlsmith et al. (2002, Study 1) found that more punishment was recommended in the high than in the low just deserts condition. The association between
the just deserts independent variable and recommended punishment was also mediated by participants moral outrage over the offense. Participants in the high
deserts condition reported more moral outrage over the offense and, in turn, more
moral outrage was associated with the assignment of a more severe punishment.
There was no effect of the deterrence manipulation on participants punishment
recommendations.
Carlsmith et al. (2002, Study 2) asked participants to make punishment recommendations specifically in accordance with the just deserts/retribution and
deterrence/utility perspectives after being given formal instruction about each
type of punishment philosophy. Participants who were instructed about the just
deserts/retribution perspective did not differ in their recommended punishment
compared to their original responses. On the other hand, participants given instructions about the deterrence/utility perspective increased their recommended
punishment compared to their earlier responses. Carlsmith et al. (Study 2) inferred from these results that participants default response for recommending
punishment was more in line with the goal of retribution than deterrence.
Woody et al.
The Current Study

Our research builds on the studies by Carlsmith and Darley to examine laypersons goals (retribution and/or deterrence) for punishing someone who violates
HIV nondisclosure laws. In Studies 1 through 3, research participants (in the role
of fictional jurors) read a criminal case about a person with HIV who did not
disclose his or her HIV seropositive status to sexual partners. The same information was presented to the participants across the studies to manipulate factors
associated with the two motivations for punishment, just deserts and deterrence.
In addition, each study manipulated a particular independent variable (gender of
the HIV law violator in Study 1, the sexual orientation of the law violator in Study
2, and the expression of an apology for the law violation in Study 3) to examine its
effects on punishment recommendations. Participants were asked to recommend
a length of time in prison as well as a monetary fine, if any, as punishment for the
law violation.
We examined the following research questions in Studies 1 through 3:
Research Question 1: What are the effects of the just deserts and deterrence
independent variables on punishment recommendations for violations of HIV
nondisclosure laws?
Research Question 2: If there are effects of the just deserts manipulation on recommended punishments, does moral outrage over violations of HIV nondisclosure laws mediate these effects?
Research Question 3: If the just deserts and/or deterrence independent variables
predict participants punishment recommendations, are they motivated to
use punishment to prevent the law violator and others from committing
the same offense in the future? In Studies 1 and 2 participants rated the
importance of preventing the law violator as well as others from committing
the same offense in the future. In Study 3 we devised items to assess incapacitation as a motive for punishing the HIV nondisclosure law violator, based
on the law violators risk of reoffending and the importance of removing him
or her from society.
Across the studies we also collected data on whether or not participants would
have found the stimulus person guilty for violating the HIV nondisclosure law,
based on the information presented in the vignette. If participants are willing
to assign a guilty verdict to the HIV nondisclosure law violator, this evidence
supports the position that people may view these laws as justified.
While we asked participants to imagine themselves as jurors in making their
punishment recommendations, they did not form a jury panel or interact with
one another. Research participants provided their reactions individually based on
reading a vignette about someone who had violated the HIV nondisclosure law.
Study 1: Effects of Just Deserts, Deterrence, and Gender of the HIV-Positive

Person on Punishment Recommendations
Specific to Study 1, we examined the effects of the gender of the law violator
on fictional jurors punishment recommendations. In unprotected vaginal intercourse, women, compared to men, are at greater risk of acquiring HIV from an
HIV-positive partner (Padian, Shiboski, Glass, & Vittinghoff, 1997; Pinkerton &
Abramson, 1997). This biological fact is also consistent with popular beliefs. In
pilot work conducted at our university in the southeastern U.S., both male and
female undergraduates believed that women were significantly more vulnerable
than men to HIV infection in heterosexual contacts. We asked if gender of the
HIV-positive person might be a main effect or a moderator of the effects of just
deserts and/or deterrence on participants punishment recommendations.
Method
Participants. Three hundred and twenty undergraduate psychology students
(148 men and 172 women) participated in the research. Participants average age
was 20.67 years (SD = 5.02 years). They were mostly Caucasians (56.9%) and
African Americans (29.1%).
Independent variables and the research design. The research design was a
2 2 2 2 factorial analysis of variance. The independent variables were just
deserts (high and low), deterrence (high and low), gender of the HIV nondisclosure
law violator (male and female), and gender of the participant (male and female).
Participants read one of eight different vignettes. Each vignette manipulated a
particular combination of just deserts, deterrence, and gender of the HIV nondisclosure law violator. Participants were instructed to assign an appropriate punishment based on the description of the HIV nondisclosure law violation described
in the vignette. Participants read that the stimulus person (a heterosexual man or
woman) had been sexually active since the time that he or she was diagnosed with
HIV 12 years ago. Participants read that the stimulus person had never disclosed
his or her HIV-positive status to sexual partners during that time period.
For the just deserts manipulation, we jointly varied information about the
severity of harm done by the HIV nondisclosure law violator (zero or four sexual
partners had been infected with HIV from having sexual intercourse with the HIVpositive person) and an extenuating factor (consistent or inconsistent condom
use with sexual partners). High just deserts is based on the HIV law violator
transmitting HIV to four sexual partners and failing to use a condom consistently;
low just deserts is based on not transmitting HIV to any sexual partners and always
using a condom. For the deterrence manipulation, we varied information about the
difficulty of detecting violations of the HIV nondisclosure law and the amount of
Woody et al.
publicity associated with the sentencing in the case. High deterrence is based on
information that violations of the HIV nondisclosure law are almost impossible to
detect or to be reported plus the sentence would generate considerable publicity;
low deterrence is based on information that violations of the HIV nondisclosure
law are highly likely to be detected and to be reported plus the sentence would
generate almost no publicity. See the Appendix to review the vignettes.
Manipulation checks. To verify the manipulation of the just deserts independent variable, participants rated the harm committed by the violator of the HIV
nondisclosure law, ranging from 1 (No harm at all) to 7 (Extreme harm). Participants made two ratings to check for the effectiveness of the deterrence independent
variable. First, they rated how likely the HIV nondisclosure law violator was to be
caught, ranging from 1 (Not at all likely) to 7 (Extremely likely). Next, participants
rated how much publicity the case was likely to generate, ranging from 1 (No
publicity at all) to 7 (Large amount of publicity).
Dependent variables. Punishment was measured by asking participants to
recommend both a prison sentence and a financial penalty for the HIV nondisclosure law violator. Participants were asked to recommend a prison sentence on an
11-point scale, ranging from 0 (No time in prison) to 10 (50 years in prison). They
were also asked how much of a monetary fine that the HIV nondisclosure violator
ought to pay on an 11-point scale, ranging from 0 ($0) to 10 ($350,000 fine). The
HIV nondisclosure law violation in our vignettes is based on Virginia criminal law
(Virginia Code, Chapter 449 18.267.4:1), where the failure to disclose ones
HIV-positive status prior to sexual intercourse is a Class 1 misdemeanor. The
maximum possible incarceration by law in Virginia for a Class 1 misdemeanor is
one year in jail and/or $2,500 fine. We found in a pilot study that more than half
of the participants would recommend the most extreme sentencing and monetary
fine. We extended the range of punishment in our research to avoid ceiling effects
in the statistical analyses as well as to insure a normal distribution of scores on
these dependent measures.
Possible mediators. Participants rated how much moral outrage they felt
about the HIV nondisclosure law violation. The rating was on a 7-point scale,
ranging from 1 (Not outraged at all) to 7 (Extremely outraged). Participants also
rated both how important it was to prevent the HIV nondisclosure law violator
and how important it was to prevent other HIV nondisclosure law violators from
committing this crime in the future. These ratings were made on 7-point scales,
ranging from 1 (Not important at all) to 7 (Extremely important).
Punishment ratings according to the just deserts/retribution and deterrence
perspectives. After participants assigned punishment based on the independent
variable manipulations, they were instructed to make recommendations in accordance with each punishment philosophy. In a counter-balanced order, participants
read a description of the rationale for using the just deserts/retribution and deterrence perspectives in assigning punishment (Carlsmith et al., 2002, p. 291). The
just deserts/retribution description focused on The sentence that society assigns
as the just punishment that the criminal deserves for the wrong he/she did. The
deterrence description focused on Assigning punishment that is sufficient to deter
people in general from committing the offense in the future, and having all people
widely aware of the punishment for committing that crime. Having participants
make punishment recommendations based explicitly on each punishment philosophy allowed us to document if participants initial punishment recommendations
(their default responses) coincided with retribution and/or deterrence.
Guilty measure. Participants were asked if they would have found the person
with HIV guilty of violating the HIV nondisclosure law: Yes, No, or Not
sure. For statistical analyses involving the guilty measure, we contrasted Yes
against the combination of No and Not sure.
Procedure. Participation was in small groups. First, all participants were informed that they would be reading about a court case and would be asked to
give their reactions (including potentially recommending a punishment). Male
and female participants were randomly assigned to read one of eight vignettes
(manipulating just deserts, deterrence, and the stimulus persons gender) describing how someone with HIV had violated the HIV nondisclosure law. Based on
the information in the case, participants were asked to independently provide their
reactions (including punishment recommendations for the HIV nondisclosure law
violator). Next, the participants made these punishment recommendations based
on instructions about the just deserts/retribution and deterrence perspectives. Each
session ended with a debriefing.
Results
Manipulation ratings. Table 1 summarizes the effects of the just deserts and
the deterrence independent variables on the manipulation checks; that is, on the
ratings of harm, likelihood of detecting the law violator, and publicity associated
with the case. As expected, participants perceived that more harm was committed
in the high than in the low just deserts condition. Also, female, compared to male,
participants perceived that the HIV law violator committed more harm (M = 5.60,
SD = 1.63 versus M = 5.02, SD = 2.05), F(1, 292) = 12.71, p < .001, p 2 = .04.
Consistent with the deterrence manipulation, participants perceived that the case
would obtain more publicity in the high than in the low deterrence condition. They
also perceived that the HIV law violator was less likely to be caught in the high
IV
High
Low
High
Low
High
6.46 (0.83) vs. 4.23** (1.92)

4.56 (1.97)
ns
5.47 (1.48)
6.62 (0.69) vs. 4.30** (1.92)
4.49 (1.95)
ns
5.51 (1.51)
6.49 (0.74) vs. 4.10** (1.95) 3.09 (1.11) vs. 6.59** (1.41) ns
ns
ns
5.51 (1.41)
Condom use
(2.02)
(1.74)
(2.06)
(1.61)
Low
3.95**
3.05**
3.95**
2.95**
High
(1.70)
(1.64)
(1.60)
(1.67)
Low
3.19**
4.31**
3.10**
4.27**
vs. 3.99** (1.68)
vs.
vs.
vs.
vs.
Likelihood of detection
3.85 (1.63)
2.73 (1.37)
3.98 (1.70)
2.78 (1.39)
ns
**
vs. 3.21 (1.86) 2.46 (1.48)
vs.
vs.
vs.
vs.
Publicity
Note. **p < .01; *p < .05.

Condom use was not used as a manipulation check in Studies 1 and 2. Each cell presents the means and standard deviations (in parentheses) associated with
the manipulation checks.
Study 1 Just deserts

Deterrence
Deterrence
Deterrence
Harm
Table 1. Manipulation Checks for the Just Deserts and Deterrence Independent Variables across Studies 13
10
Woody et al.
11
than in the low deterrence condition. There were also just deserts main effects
on the ratings of publicity about the case and the likelihood of catching the law
violator. Participants perceived that the case would receive more publicity and
that the law violator was more likely to be caught in the high than in the low just
deserts condition.
Punishment ratings. Just deserts main effects were found for both punishment
measures: recommended time in prison, F(1, 292) = 78.02, p < .001, p 2 = .21, and
financial fine (F(1,292) = 87.76, p < .001, p 2 = .23. Participants recommended
a more severe prison sentence (M = 4.22, SD = 2.97 versus M = 1.68, SD = 1.92)
and fine (M = 6.03, SD = 3.22 versus M = 2.95, SD = 2.48) in the high than in
the low just deserts condition. There was no effect of the deterrence independent
variable on the punishment ratings.
Recall that the just deserts manipulation influenced ratings on likelihood of
detecting the crime and amount of publicity expected to be generated by the
case. We wanted to make certain that the effects of just deserts on punishment
were restricted to factors specifically associated with this punishment philosophy.
We conducted an analysis of covariance (ANCOVA) on the punishment measure
with just deserts, deterrence, gender of the law violator, and gender of the research
participants as the independent variables with likelihood of detection and publicity
about the case as covariates. The results of the ANCOVA indicated that just deserts
still affected both the prison sentence, F(1, 290) = 52.49, p < .001, p 2 = .15,
and the financial fine, F(1, 290) = 69.28, p < .001, p 2 = .19, measures.
We also found a gender of the law violator main effect on the financial fine
measure, F(1, 292) = 4.93, p = .027, p 2 = .02. Participants recommended a more
severe fine for the male, compared to the female, law violator (M = 4.89, SD =
3.25 versus M = 4.08, SD = 3.22).
The gender of the law violator did not moderate the results of the just deserts
and/or the deterrence independent variables. Also participants gender did not
influence their punishment recommendations.
The main effects of just deserts and the lack of main effects of deterrence on
the punishment measures suggest that people behave like just deserts/retribution
theorists in assigning punishment. However, we conducted further analyses to document this conclusion. We calculated the absolute value of the difference between
the sentences and fines recommended initially and those recommended using only
just deserts/retribution theory or deterrence theory. We then compared these difference scores using paired-samples t-test. The difference between original prison
sentences and just deserts/retribution prison sentences (M = 1.55, SD = 1.98)
was lower than the difference between original prison sentences and deterrence
prison sentences (M = 2.88, SD = 2.38), t(319) = 8.99, p < .001, r2 = .20.
The difference between original fines and just deserts/retribution fines (M = 1.59,
SD = 1.98) was significantly lower than the difference between original fines and
12
Woody et al.
1.23*** (0.159)
Just
Deserts
Moral
Outrage
0.57*** (0.114)
Severity of
Prison Sentence
1.69*** (0.290)
0.64*** (0.134)
0.41** (0.120)
Importance of
Prevenon:
Law Violator
0.27 (0.184)
0.01 (0.202)
Importance of
Prevenon:
Others
Fig. 1a. Mediation of the just deserts independent variable on severity of prison sentence (Study 1).
Regression coefficients shown with bootstrapped empirical standard errors in parentheses.
*p < .05, **p < .01, ***p < .001.
deterrence fines (M = 2.40, SD = 2.36), t(317) = 5.11, p < .001, r2 = .08.

These results suggest that people rely more on retribution than deterrence in the
assignment of punishment, as the punishment recommendations using only a just
deserts/retribution perspective were much closer to the original recommendations
than punishment recommendations using only a deterrence perspective.
Mediation analyses. We examined the role of moral outrage, the importance
of preventing the law violator from committing this crime in the future, and
the importance of preventing other potential law violators from committing this
crime as possible mediators. To test the significance of these possible mediators,
we used a nonparametric bootstrapping procedure. This procedure uses an empirically derived sampling distribution and thus empirically derived standard errors
of the indirect effects, which obviates the need for normality of the indirect
effects (Preacher & Hayes, 2004, 2008). Additionally, significance for mediation
models was assessed using bias-corrected bootstrap confidence intervals. These
intervals are more accurate than the p-value as calculated by the standard error
(as indicated via simulation studies) because they correct for error in the central
tendency of the distribution while maintaining power (MacKinnon, Lockwood,
& Williams, 2004). The three mediators were tested simultaneously as multiple
mediators of the effects of just deserts on both prison sentence and financial fine
(see Figures 1a1b and Table 2). Whereas all other analyses were conducted using
SPSS (version 17.0), indirect effects were examined using Mplus (version 6.1;
Muthen & Muthen, 19982010), with maximum likelihood (ML) estimation and
a bootstrap sample size of n = 5,000.
As seen in Table 2, moral outrage was a significant mediator of the effects of
the just deserts independent variable on both the severity of the prison sentence
1.23*** (0.159)
Just
Deserts
Moral
Outrage
13
0.28* (0.133)
2.49*** (0.351)
0.64*** (0.134)
0.41** (0.120)
Importance of
Prevenon:
Law Violator
0.48* (0.232)
Severity of
Fine
-0.004 (0.254)
Importance of
Prevenon:
Others
Fig. 1b. Mediation of the just deserts independent variable on severity of fine (Study 1). Regression
coefficients shown with bootstrapped empirical standard errors in parentheses.
*p < .05, **p < .01, ***p < .001.
and the financial fine. Preventing the law violator from committing the same
crime in the future was also a significant mediator of the effects of the just deserts
manipulation on the severity of the monetary fine but not on the prison sentence.
Preventing others from committing this crime in the future was not a significant
mediator in these analyses. There was also a direct effect of the just deserts
manipulation on the punishment recommendations, controlling for the possible
mediators.
Guilty or not guilty? The majority of participants (79.06%) assigned a guilty
verdict to the HIV-positive person for violating the HIV nondisclosure law. In
addition, more participants assigned a guilty verdict to the HIV nondisclosure law
violator in the high (91.88%) than in the low (66.25%) just deserts condition, 2
(1, N = 320) = 31.73, p < .001, = .32. There was no effect of the deterrence
manipulation on the recommendation of guilt.
Discussion
Consistent with the retribution perspective, participants were influenced by
the just deserts but not the deterrence manipulations in recommending punishment.
Participants assigned higher sentences and fines when the case contained factors
associated with the high, compared to the low, just deserts condition. The results
document how the just deserts independent variable (mediated by moral outrage)
influences punishment recommendations. We also found that preventing the law
violator from committing this crime in the future mediated the association between
the just deserts manipulation and the severity of the financial fine. Preventing
the wrongdoer from violating the law as a mediator between just deserts and
Fine
Prison
Fine
Mediator
Moral Outrage
Preventing Perpetrator
Preventing Others
Total Indirect
Moral Outrage
Preventing Others
Total Indirect
Moral Outrage
Preventing Others
Total Indirect
Moral Outrage
Preventing Others
Total Indirect
B
0.702
1.172
0.002
0.876
0.339
0.308
0.002
0.645
0.448
0.209
0.093
0.750
0.427
0.421
0.006
0.853
0.163
0.120
0.088
0.152
0.168
0.151
0.108
0.162
0.127
0.167
0.123
0.135
0.144
0.183
0.133
0.158
Empirical SE
t
4.300
1.427
0.028
5.758
2.016
2.042
0.017
3.975
3.518
1.249
0.758
5.546
2.962
2.297
0.048
5.396
p
.000
.154
.977
.000
.044
.041
.987
.000
.000
.212
.448
.000
.003
.022
.962
.000
Note. Confidence intervals are 95% bias-corrected bootstrap confidence intervals. Bold text indicates significance at the p < .05 level.
Outcome
Prison
0.412 to 1.054
0.044 to 0.439
0.190 to 0.166
0.601 to 1.202
0.036 to 0.702
0.054 to 0.667
0.241 to 0.202
0.364 to 1.004
0.228 to 0.738
0.048 to 0.564
0.107 to 0.343
0.500 to 1.040
0.170 to 0.733
0.093 to 0.823
0.253 to 0.285
0.566 to 1.184
95% BC boot CI
Table 2. Total Indirect and Specific Indirect Effects from the Just Deserts Independent Variable to Severity of Prison Sentence or Fine in Studies 1 and 2
Study
14
Woody et al.
15
the financial fine may have served either of two motives: specific deterrence,
where the goal is to deter the law violator from reoffending in the future and/or
specific incapacitation, where the goal is to incapacitate the law violator from
reoffending (Carlsmith & Darley, 2008, pp. 200201).
In addition, we found that the just deserts independent variable directly predicted participants punishment recommendations, controlling for the possible
mediators. Some other mechanism, such as participants concerns about their personal safety (Kurzban & Leary, 2001), may also mediate the link between the
just deserts manipulation and punishment, or there may be a primal motivation to
mete out punishment that is a proportional to the severity of harm done by the law
violator.
We also found that the punishment suggested by participants when instructed
to use only a just deserts/retribution perspective were much closer to their original punishment recommendations than the punishment that they assigned when
instructed to use only the deterrence perspective. This finding supports the notion
that participants gut level motive is to rely on retribution rather than deterrence
in assigning punishment for HIV nondisclosure law violations.
Gender did not moderate the effects of just deserts or deterrence. However,
both women and men assigned higher fines to the male than to the female law
violator. This finding is consistent with the idea that men, compared to women,
with HIV are perceived as a greater threat to their opposite-sex intimate partners
and, hence, deserve more punishment. However, this is a tentative assertion. Based
on the research design, we dont know if it was the gender of the HIV-positive
person, the gender of the sexual partners, or the HIV-positive person/sexual partner
gender combination that influenced the recommended fine.
Consistent with the retribution perspective, the just deserts independent variable predicted punishment via the mediating variable of moral outrage in Study 1.
However, the just deserts independent variable also predicted the financial punishment for the law violator via the goal of preventing him/her from committing
this offense in the future. We continue to use the term just deserts to describe
how we simultaneously manipulated the degree of harm done by the law violator
and the absence/presence of a mitigating factor. However, based on our findings,
it would be misleading to conclude that the just deserts independent variable
only primes retribution as a motive for punishment. The just deserts manipulation
primes retribution for an HIV law violation, but it also sensitizes participants to
mete out punishment to prevent the law violator from reoffending.
Study 2: Effects of Just Deserts, Deterrence, and Sexual Orientation of the
HIV-Positive Person on Punishment Recommendations
Study 2 replicated and extended the findings in Study 1. The just deserts and
deterrence independent variable manipulations in Study 2 were the same as in
16
Woody et al.
Study 1. However, in Study 2, the sexual orientation of the HIV nondisclosure

law violator in the vignettes replaced gender of the law violator as an independent
variable. The highest incidence of HIV and/or AIDS in the United States is among
men having sex with men (Centers for Disease Control and Prevention, 2011)
and the general public in the United States tends to associate HIV/AIDS with
homosexuality (Herek & Capitanio, 1999).
Given peoples assumptions about who has HIV as well as the existence of
negative attitudes about homosexual men who contract HIV via sexual activity
(Herek, 2002), we examined how identifying the HIV nondisclosure law violator
as a homosexual or heterosexual man might either directly or as a moderator
influence laypersons punishment recommendations.
Method
Participants. Three hundred and twenty-seven undergraduate psychology
students (135 men and 192 women) participated in Study 2. Participants average age was 20.99 years (SD = 4.51 years). Respondents were predominantly
Caucasians (49.5%) and African Americans (32.7%).
Research design. The independent variables in Study 2 (with one exception)
were identical to the manipulations in Study 1. In Study 2 the law violator was
described as either a homosexual (a man who had sex with men) or a heterosexual
(a man who had sex with women) person. Otherwise, the procedure, manipulation
checks, possible mediators, and dependent measures were the identical to Study 1.
Results
Manipulation checks. The just deserts and deterrence manipulation checks
were successful. See Table 1. As in Study 1, participants rated that there was a
greater likelihood of detecting the law violator in the high than in the low just
deserts condition. They also perceived that the case would generate more publicity
in the high than in the low just deserts condition.
Several significant effects of the law violators sexual orientation were
found. Participants perceived that more harm was done (M = 5.73,
SD = 1.71 versus M = 5.22, SD = 1.94) by the homosexual than the heterosexual law violator, F(1, 311) = 8.83, p = .003, p 2 = .03. They also perceived
that there was a greater likelihood of detecting the law violator (M = 3.82, SD =
1.74 versus M = 3.29, SD = 1.64) who was a homosexual than a heterosexual
man, F(1, 311) = 10.83, p < .001, p 2 = .03.
Punishment ratings. We found a just deserts main effect for both punishment
measures: period of time to be served in prison, F(1, 310) = 128.36, p < .001,
17
p 2 = .29, and financial fine, F(1, 307) = 51.83, p < .001, p 2 = .14. Participants
assigned a longer prison sentence (M = 5.34, SD = 3.02 versus M = 1.96, SD =
2.20) and a stiffer fine (M = 6.26, SD = 3.16 versus M = 3.73, SD = 2.83) in
the high than in the low just deserts condition. There were no significant effects
incorporating the deterrence independent variable on the punishment recommendations. In addition, there were no effects involving the sexual orientation of the
HIV nondisclosure law violator on punishment.
Given that the just deserts independent variable predicted the amount of
publicity to be generated by the case and the likelihood of catching the law
violator, we conducted ANCOVAs on the punishment measures with amount of
publicity and likelihood of detection as covariates. These analyses still found
significant just deserts main effects for recommended prison sentence, F(1, 308)
= 90.72, p < .001, p 2 = .23, and financial fine, F(1, 305) = 32.50, p < .001,
p 2 = .10.
As in Study 1, we asked participants to recommend punishment based on a
description of just deserts/retribution and deterrence perspectives. We calculated
the absolute difference between the sentences and fines recommended initially
and those recommended using only the just deserts/retribution or deterrence perspectives. The difference between prison sentences assigned originally versus
prison sentences assigned based on a description of the just deserts/retribution
perspective (M = 1.51, SD = 1.79) was significantly smaller than the difference
between original prison sentences assigned originally versus prison sentences assigned based on a description of the deterrence perspective (M = 2.92, SD =
2.35), t(323) = 9.78, p < .001, r2 = .23. Also, the difference between original
fines and retribution fines (M = 1.60, SD = 1.97) was significantly smaller than
the difference between original fines and deterrence fines (M = 2.43, SD = 2.25),
t(317) = 5.45, p < .001, r2 = .09. These results suggest that participants use
retribution rather than deterrence as a default perspective in making punishment
recommendations.
Mediation analyses. Akin to Study 1, we used Mplus, ML estimation, and
n = 5,000 bootstrapping procedure to simultaneously test if moral outrage, preventing the law violator from committing the same crime in the future, and the
importance of preventing others from committing the crime in the future mediated
the association between just deserts and the punishment measures. See Table 2.
We found that moral outrage and preventing the law violator from committing
the crime in the future mediated the effects of just deserts on the severity of the
fine. Also, moral outrage mediated the association between just deserts and the
severity of the prison sentence. As in Study 1, preventing others from committing
the crime was not a significant mediator; and just deserts directly predicted both
punishment recommendations, controlling for the possible mediators.
18
Woody et al.
Guilty or not guilty? Consistent with the findings in Study 1, a majority of

participants (79.82%) found the HIV-positive person guilty of violating the HIV
nondisclosure law. Participants were also more likely to assign guilt in the high
(90.80%) than in the low (68.90%) just deserts condition, 2 (1, N = 327) =
24.33, p < .001, = .27. There was no effect of the deterrence manipulation on
recommendations for a guilty verdict.
Discussion
As in Study 1 participants recommended punishments for violation of the
HIV nondisclosure law were affected by the just deserts but not by the deterrence
manipulation. In addition, we found that the effects of the just deserts independent
variable on punishment were mediated by participants sense of moral outrage as
predicted by the retribution perspective.
There was no support for deterrence per se (in the sense of wanting to prevent others from committing this crime) as a motivation for punishment. Though
the just deserts manipulation predicted the importance of preventing others from
committing this crime in the future, this variable did not mediate the association
between just deserts and participants punishment recommendations. However,
the high, compared to the low, just deserts condition was associated with wanting to prevent this wrongdoer from violating the HIV nondisclosure law in the
future; in turn, preventing the wrongdoer from repeating this crime predicted
the recommended financial fine. As in Study 1, when we controlled for the possible mediators, there was still a direct effect of the just deserts independent variable
on participants punishment recommendations.
The sexual orientation of the law violator had no effect on participants punishment recommendations. This finding occurred despite participants perceptions
that more harm was committed by the homosexual than by the heterosexual man
who violated the HIV nondisclosure law and there was a greater likelihood of
detecting the homosexual than the heterosexual law breaker.
Study 3: Effects of Just Deserts, Deterrence, and the Expression of an
Apology by the HIV-Positive Person on Punishment Recommendations
In Study 3, we sought to extend our findings by focusing on a contextual
variable (i.e., the expression of an apology to victims) that might affect punishment
recommendations (e.g., McCullough, 2008; Robinson, Smith-Lovin, & Tsoudis,
1994).
Consistent with Studies 1 and 2, we expected that the just deserts manipulation
would predict the severity of punishment for violations of the HIV nondisclosure
law. We also expected that the expression of an apology would be associated
with less severe punishment recommendations. In addition, we wanted to examine
19
how an apology might moderate the effects of just deserts on punishment. The
expression of an apology might reduce punishment recommendations more under
the high, compared to the low, just deserts condition, especially if the apology
serves to reduce subjects moral outrage about the law violation.
In Study 3, we again examined the role of moral outrage as a possible mediator
of the effects of a just deserts manipulation on punishment recommendations. But
we also examined more closely how punishment might be used to prevent the law
violator from committing the same crime in the future. We presented evidence
in Studies 1 and 2 that the severity of a recommended fine as a function of the
just deserts manipulation was mediated by the importance of preventing the law
violator from committing this crime in the future. Participants might believe that a
more severe fine motivates HIV law violators to think twice about committing this
crime in the future, reflecting specific deterrence as a motivation for punishment.
It is also possible that research participants meted out a severe fine under the high,
compared to the low, just deserts condition to lower the law violators capacity to
commit this crime in the future, reflecting incapacitation as a punishment goal.
In Study 3, we included items to assess more directly how the motivation to
incapacitate a law violator might mediate the association between the just deserts
independent variable and punishment.
Method
Participants. The participants were 233 university students (52 men, 178
women, and 3 persons who did not identify their gender). Participants mean age
was 24.02 years (SD = 8.93). Participants were mostly Caucasians (53.2%) and
African Americans (27.5%). Data collection for Study 3 was based on having
each participant independently access materials online. Otherwise, the procedures
(e.g., instructions, questionnaire materials) were the same as in Studies 1 and 2.
Research design. The design for Study 3 was a 2 2 2 factorial analysis
of variance. The independent variables were just deserts, deterrence, and the expression of an apology. The apology manipulation was based on whether or not
the HIV law violator expressed an apology to his sexual partners when given the
opportunity to speak during the court proceedings. Based on earlier research by
Blum-Kulka and Olshtain (1984) and Scher and Darley (1997), our apology induction incorporated four apology components: expression of remorse, responsibility
expression, promise of forbearance, and an offer of repair. In the low apology
condition, the law violator said nothing when he had the opportunity to speak to
his sexual partners in the courtroom.
Besides our usual manipulation checks, we added an item for Study 3 asking
participants to recall How often did John [the HIV nondisclosure law violator] use
a condom? Ratings were made on a 7-point scale from 1 (Never) to 7 (Always).
20
Woody et al.
Ratings on this item are relevant to the presence or absence of a mitigating factor
that is an essential component of the just deserts manipulation.
We also constructed a six-item scale to check on the apology induction.
The items in the apology induction focused on how well we had operationalized
the apology components. Sample statements included: How much did John apologize for violating the HIV nondisclosure law? How remorseful was John?
Ratings were made on a 7-point scale from 1 (Not at all) to 7 (Extremely). The
Cronbachs alpha for the apology manipulation check was .95. We also constructed
a three-item measure to operationalize moral outrage as a potential mediating
variable. The items were: To what degree were you morally outraged by this offense?; How angry did the case make you?; and How upset did the case make
you? Ratings on the moral outrage items were made on 7-point scales ranging
from 1 (Not at all) to 7 (Extremely). The Cronbachs alpha for the moral outrage
scale was .92.
We constructed two items to operationalize specific incapacitation as a mediating variable. Participants were asked What is the risk of this type of crime
being committed by John in the future? Ratings on this item were made on a
7-point scale ranging from 1 (No risk at all) to 7 (Extreme risk). Participants were
also asked to rate, How important is it that John be removed from society so that
he does not have the opportunity to do this again? This rating was also made on
a 7-point scale ranging from 1 (Not at all important) to 7 (Extremely important).
Results
Manipulation checks. Participants indicated that more harm was done in the
high than in the low just deserts condition. Participants also perceived that the law
violator used a condom more often in the low than in the high just deserts condition.
The deterrence manipulations were also effective. The case was perceived as more
likely to generate publicity in the high than in the low deterrence condition, and
the low violator was rated as more likely to be caught in the high than in the low
deterrence condition. There were no other effects incorporating the just deserts
and deterrence independent variables on the manipulation check measures. See
Table 1.
There was also a main effect of the apology independent variable on the
apology manipulation check, F(1, 221) = 545.80, p < .001, p 2 = .71. Participants
perceived that the HIV law violator was more apologetic in the apology than
in the no apology condition (M = 27.72, SD = 7.81 versus M = 8.30, SD =
4.24, respectively). There was also a main effect of just deserts on the apology
manipulation check, F(1, 221) = 17.89, p < .001, p 2 = .08. Participants perceived
that the HIV law violator was more apologetic in the low than in the high just
deserts condition (M = 19.77, SD = 12.17 versus M = 16.25, SD = 10.82).
21
Punishment ratings. There was a main effect of the just deserts independent variable on the recommended prison sentence, F(1, 225) = 77.78, p < .001,
p 2 = .26, and fine, F(1, 225) = 59.40, p < .001, p 2 = .21. Participants recommended a longer prison sentence and fine in the high than in the low just
deserts condition (recommended prison sentence: M = 6.66, SD = 3.45 versus
M = 3.22, SD = 2.25; recommended fine: M = 8.52, SD = 3.25 versus M =
5.34, SD = 3.06). There were no deterrence main effects on the punishment
recommendations.
The apology main effect on the prison sentence measure was not significant,
F(1, 225) = 0.18, p = .668, p 2 = .00. However, there was a main effect of apology
on the fine, F(1, 225) = 10.15, p = .002, p 2 = .04. Participants recommended a
lower fine in the apology (M = 6.27, SD = 3.25) than in the no apology condition
(M = 7.58, SD = 3.71). There was also a significant just deserts by apology
interaction on the recommended prison sentence, F(1, 225) = 5.97, p = .015, p 2 =
.03, but it was not significant for the monetary fine measure, F(1, 225) = 2.03, p
= .155, p 2 = .01. Based on simple effects analyses, there was no difference in
the recommended prison sentence in the low just deserts condition as a function
of the apology induction: M = 3.55 (SD = 2.28) and M = 2.83 (SD = 2.17) in
the apology and no apology conditions, F(1,229) = 1.67, p = .198, p 2 = .01.
However, in the high just deserts condition, participants recommended a shorter
prison sentence in the apology (M = 6.12, SD = 3.41) than in the no apology
condition (M = 7.20, SD = 3.46), F(1, 229) = 4.19, p = .042, p 2 = .02.
Mediation analyses. Mediation analyses again found a significant indirect
link between the just deserts independent variable and both punishment recommendations (i.e., prison time and fine) via moral outrage. There was also a
significant indirect link between the just deserts independent variable and both
recommended punishments through law violators perceived risk of repeating the
crime and the importance of removing him from society (see Figures 2a2b and
Table 3). The high, compared to low, just deserts condition was associated with
the perception that the HIV law violator was at a higher risk of repeating this
crime. In turn, higher perceived risk of the law violator repeating this crime was
associated with the greater importance of removing him from society and, the
greater importance of removing the law violator from society led to more severe
punishment recommendations. In addition, we found, as in the earlier studies,
a direct link between the just deserts independent variable and the punishment
recommendations controlling for the mediating variables.
We found no significant indirect link between the just deserts by apology interaction on the recommended prison sentence via moral outrage or risk of repeating
the crime/importance of removing the law violator from society. On the other
hand, we found that the risk of repeating the crime/importance of removing the
law violator from society mediated the relationship between apology and the fine.
3
3
3
3
3
3
3
3
Mediator(s)
Moral Outrage
Moral Outrage
Risk/Remove
Risk/Remove
Moral Outrage (APOL as IV)
Moral Outrage (APOL as IV)
Risk/Remove (APOL as IV)
Risk/Remove (APOL as IV)
B
0.998
0.917
0.361
0.267
0.155
0.138
0.570
0.450
0.164
0.190
0.135
0.100
0.177
0.163
0.133
0.109
Empirical SE
t
6.100
4.815
2.670
2.673
0.874
0.848
4.299
4.144
p
.000
.000
.008
.008
.382
.397
.000
.000
0.712 to 1.354
0.580 to 1.327
0.129 to 0.653
0.098 to 0.486
0.501 to 0.193
0.460 to 0.183
0.850 to 0.330
0.686 to 0.258
95% BC boot CI
Note. Confidence intervals are 95% bias-corrected bootstrap confidence intervals. Bold text indicates significance at the p < .05 level. Risk = risk of
repeating the offense by the law violator, Remove = importance of removing law violator from society, APOL = apology, IV = first-order independent
variable.
Outcome
Prison
Fine
Prison
Fine
Prison
Fine
Prison
Fine
Study
Table 3. Indirect Effects from the Just Deserts Independent Variable (and from Apology as an Independent Variable Where Specified) to Severity of Prison
Sentence or Fine in Study 3
22
Woody et al.
23
0.50*** (0.051)
Risk of Repeang
Oense by Law
Violator
Importance of
Removal from
Society
0.62** (0.186)
Just
Deserts
1.17*** (0.064)
Severity of
Prison
Sentence
0.90*** (0.280)
Fig. 2a. Sequential mediation of the just deserts independent variable on severity of prison sentence
(Study 3) through perceived risk of repeating offense by the law violator and importance of his
removal from society. Regression coefficients shown with bootstrapped empirical standard errors in
parentheses.
*p < .05, **p < .01, ***p < .001.
0.50*** (0.051)
Risk of Repeang
Oense by Law
Violator
0.62** (0.186)
Importance of
Removal from
Society
0.86*** (0.082)
Just
Deserts
Severity of
Financial Fine
1.34***(0.343)
Fig. 2b. Sequential mediation of the just deserts independent variable on serverity of financial fine
parentheses.
*p < .05, **p < .01, ***p < .001.
Though the apology main effect on the recommended prison sentence was not significant, there was a significant indirect effect of repeating the crime/importance of
removing the law breaker from society mediating the relationship between apology
and the prison sentence. Thus, an apology was associated with a lower perceived
risk of the law violator repeating the crime. In turn, a lower risk of repeating the
crime predicted the lower importance of removing the law violator from society,
leading to less severe punishment recommendations. (See Figures 3a3b and Table 3.) In addition, the apology main effect on the sentencing was still significant
24
Woody et al.
0.49*** (0.051)
Importance of
Removal from
Society
Risk of Repeang
Oense by Law
Violator
-0.89** (0.184)
1.29*** (0.051)
Apology
Severity of
Prison Sentence
0.46* (0.225)
Fig. 3a. Sequential mediation of the apology independent variable on severity of prison sentence
parentheses.
*p < .05, **p < .01, ***p < .001.
0.49*** (0.051)
Risk of Repeang
Oense by Law
Violator
-0.89** (0.184)
Importance of
Removal from
Society
1.02*** (0.068)
Apology
-0.33 (0.295)
Severity of
Financial Fine
Fig. 3b. Sequential mediation of the apology independent variable on severity of financial fine
parentheses.
*p < .05, **p < .01, ***p < .001.
despite the significant indirect effect involving repeating the crime/importance of

removing the law violator from society.
Guilty or not guilty? Consistent with Studies 1 and 2, the majority (79.40%)
of the participants in Study 3 found the HIV-positive person guilty of violating
the HIV nondisclosure law. Participants also were more likely to assign a guilty
verdict in the high (90.24%) than in the low (67.27%) just deserts condition,
2 (1, N = 233) = 18.73, p < .001, = .28. There were no effects of the
deterrence or apology manipulations on assigning a guilty verdict.
25
Discussion
The high, compared to the low, just deserts condition predicted harsher punishment recommendations and a greater likelihood of a guilty verdict. Moral
outrage again mediated the link between the just deserts independent variable
and punishment, documenting the importance of retribution as a motivation for
punishment for laypersons. In addition, the just deserts manipulation also influenced punishment recommendations via a utilitarian-based motive (i.e., specific
incapacitation).
According to Carlsmith and Darley (2008), The goal of an incapacitationist
is to prevent known criminals from reoffending, and thus the single most important
criteria in deciding whether to sentence is the likelihood of recidivism (p. 201).
The severity of harm done by the HIV law violation (absent a mitigating factor)
influenced participants judgments of the law violators likelihood of repeating this
crime in the future. In turn, a higher risk of reoffending was associated with higher
importance of removing the law violator from society. Next, higher importance of
removing the law violator from society influenced recommendations for a more
severe prison sentence and monetary fine. Though it is intuitively obvious that a
longer prison sentence may be used to incapacitate a future recidivist, we should
note that the use of a fine might also serve as a form of specific incapacitation if a
severe monetary fine curbs a life style that might put others at risk of harm from
the law violator.
We found no evidence that either moral outrage and/or specific incapacitation
served as mediating variables in explaining the association between the just deserts
by apology interaction on the prison sentencing measure. However, we found
evidence in the mediation analyses that an expression of an apology indirectly
influenced participants punishment recommendations in ways consistent with
the specific incapacitation motive for punishment. Given that the law violator
who apologized was seen as a lower risk of repeating this offense in the future,
participants perceived that it was less important to remove him from society,
leading to a shorter prison sentence and a smaller monetary fine. Thus, peoples
assessments about a law violators future criminal behavior may be changed by
the expression of an apology, in turn, influencing punishment recommendations.
General Discussion
HIV nondisclosure laws are intended to stop the spread of HIV based on the
assumption that HIV disclosure will reduce the occurrence of risky sex among
HIV-positive individuals. These laws use the threat of punishment to deter HIV
nondisclosure. These laws are also intended to punish law violators who put their
sexual partners at risk of HIV infection by the failure to disclose ones HIV status.
26
Woody et al.
Overall, we found no evidence that general deterrence (i.e., meting out punishment to deter people from violating HIV nondisclosure laws in the future)
influenced participants punishment recommendations. Also, in Studies 1 and 2,
the importance of preventing others from violating the law did not mediate the
relationship between the just deserts independent variable and participants punishment recommendations. Thus, we found no evidence that participants viewed
general deterrence (as originally envisioned by legislators) as a goal for punishing
a specific individual who violates a HIV nondisclosure law.
On the other hand, we found strong support among participants for retribution
as a motivation for punishment. This indirect link occurred across all studies,
regardless of the gender or the sexual orientation of the law violator, or the
expression of an apology. Thus, there was proportionality (Carlsmith & Darley,
2008, p. 200) in the punishment meted out for the offense reflecting the degree of
harm (in the absence of a mitigating factor) caused by the HIV law violation.
Along with strong evidence for retribution, we found that specific forms
of utility (based on the goal of preventing the law violator from reoffending)
may influence participants punishment recommendations based on the amount
of harm done by the HIV law violation. In Studies 1 and 2, we found that the
importance of preventing the HIV law violator from committing this crime in
the future mediated the association between the just deserts independent variable
and the monetary fine. Particularly in Study 3, when we incorporated measures
to operationalize specific incapacitation, there was support for incapacitation as
a goal of punishment. High just deserts was associated with a higher perceived
probability that the law violator would repeat the crime; the likelihood of repeating
the crime, in turn, was associated with the greater importance of removing the law
violator from society and that led to a recommendation for a more severe fine.
Unfortunately, in Study 3, we did not include measures to assess the role of
specific deterrence as a mediating mechanism. Future research should examine
how specific types of utility (including specific deterrence and incapacitation)
affect punishment recommendations for violations of HIV nondisclosure laws.
The research described in Study 3 also examined how a contextual variable
(the use of an apology) might influence participants punishment recommendations. Some scholars (e.g., Petrucci, 2002) have suggested that the expression of an
apology restores a sense of social justice, reducing anger and, perhaps, moral outrage over the harm done by the criminal offense. However, we found no evidence
in Study 3 that moral outrage mediated the association between an apology and
the punishment recommendations. Instead, the expression of an apology reduced
the perceived threat to society posed by the HIV law violator, reducing the need
to incapacitate and, in turn, to lower punishment recommendations (based on the
sentencing and financial fine measures).
27
Limitations and Future Research

The purpose of the study was to understand motivations for punishing someone who violated Virginias HIV nondisclosure law, and not to investigate how
juries make decisions. Participants never talked with one another during data collection in the small groups sessions used in Studies 1 and 2; and participants
independently accessed study materials online in Study 3. Nevertheless, it is possible that participants instructions to behave like a juror may have influenced their
reactions to the vignettes. A juror mindset could have primed participants to focus
on punishing the HIV law violator per se (including the importance of retribution and specific deterrence/incapacitation as the goals of punishment) instead of
focusing on the ramifications of punishment for deterring other law violators. In
future research, research participants might be asked to recommend punishment
(as well as their goals for punishing HIV nondisclosure) as if they were members
of the general public as opposed to being a juror. If results were comparable under
the different sets of instructions, then we would have greater confidence that our
results reflect laypersons opinions about HIV nondisclosure laws.
A second limitation derives from our reliance on college students as research
participants. It is important to replicate the research with a more representative
cross-section of the general public. We speculate that if college students are
more concerned than older adults about the risk of sexually transmitted diseases,
they might focus more on punishing a particular law violator (focusing on the
goals of retribution and specific deterrence/incapacitation) than about deterring
HIV-positive persons transmitting the disease in the future HIV.
Our research provides preliminary evidence about peoples use of punishment
in response to violations of an HIV nondisclosure law. But there are several directions that might be pursued in future research. For instance, it is important to
document if HIV-positive persons would use HIV nondisclosure laws to punish
law violators. Research in New Jersey (Galletly et al., 2012a) and in Michigan
(Galletley et al., 2012b) indicates that many HIV-positive persons strongly endorse the criminalization of HIV nondisclosure, especially if the HIV-positive
person and her/his partner were to have unprotected sexual intercourse (Galletly
et al., 2012a, 2012b). We could learn more about the goals that underlie this
support and whether they would endorse restrictions in these laws (e.g., limiting
prosecution to egregious offenses and/or cases of intentional transmission). Also,
research indicates that people differ in their willingness to stigmatize someone
with HIV (Capitanio & Herek, 1999; Herek, 2002; Herek & Capitanio, 1999;
Herek, Capitanio, & Widaman, 2002; Kaiser Family Foundation, 2006). It would
be appropriate to investigate how individuals knowledge about HIV and attitudes
directed at groups affected by HIV influence motivations for punishment under
HIV nondisclosure laws. We speculate that knowing someone with HIV, rejecting
inaccurate beliefs about routes of HIV transmission, and positive attitudes about
28
Woody et al.
sexual minorities (including gay and bisexual men) and tolerance of injection drug
users should lead to a more favorable evaluation of HIV-positive persons and, in
turn, this favorable evaluation should reduce moral outrage for HIV nondisclosure,
reducing the importance of retribution as a goal for punishing HIV nondisclosure
law violators.
Importance of the Research and Conclusions
We noted, at the beginning of this article, how public health advocates and
political leaders have been critical of state laws criminalizing HIV-related behaviors and, in particular, HIV nondisclosure (e.g., Galletly & Pinkerton, 2006;
Lazzarini et al., 2002; White House Office of National AIDS Policy, 2010).
Concerns about complying with HIV nondisclosure laws have also been expressed by many HIV-positive individuals (e.g., Galletly & Dickson-Gomez, 2009;
Sero/Strub, 2011). Our research suggests, however, that people are likely to endorse HIV nondisclosure laws as fair and credible, especially if they are used to
punish HIV nondisclosure law violators who cause considerable harm to their
sexual partners. The publics goals for punishment are likely to include retribution
and incapacitating the law violator based on the amount of harm that was caused
by HIV nondisclosure.
We submit that present-day public health officials and political leaders who
advocate for the elimination of HIV nondisclosure laws face an uphill battle to
abolish HIV nondisclosure laws. It may be impossible to gain public support
for a sweeping elimination of HIV nondisclosure laws. Perhaps a more realistic
goal for policy makers would be to argue for a restricted application of HIV
nondisclosure laws, for instance, limiting statutes and prosecution to egregious
cases where considerable harm was caused to sexual partners in the context of
HIV nondisclosure.
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Appendix
High Just Deserts, High Deterrence
John is HIV positive and found out about his HIV diagnosis 12 years ago.
He is heterosexual. He did not disclose to any of the women who have been his
sexual partners that he was HIV positive. John did not always use a condom when
he had sexual intercourse with his partners. There was a high risk of HIV being
transmitted to his sexual partners when a condom wasnt used. Documentation
was presented in a court case that he infected four women with the virus that
causes AIDS.
A crime of this sort is almost impossible to detect or to be reported. It is
difficult for people to find out that someone with HIV has been having sex with
other sexual partners and not disclosing their infection to the sexual partner. Johns
behavior was reported to legal authorities initially because of a set of unlikely
coincidences. In this case, the sentence you assign will get wide publicity because
network television shows like Larry King Live and Nancy Grace are doing an
intensive series on crimes, criminals, and courts. By doing this, they give the
public a sense of the realities of crimes and the criminal court system. The series
has attracted much attention.
Low Just Deserts, High Deterrence

John is HIV positive and found out about his HIV diagnosis 12 years ago. He
is heterosexual. He did not disclose to any of the women who have been his sexual
partners that he was HIV positive when he had sexual intercourse with them. John
always used a condom when he had sexual intercourse with his partners. There
was a low risk of HIV being transmitted to his sexual partners when a condom
was used. Documentation was presented in a court case that he did not infect any
women with the virus that causes AIDS.
A crime of this sort is almost impossible to detect or to be reported. It is
difficult for people to find out that someone with HIV has been having sex with
other sexual partners and not disclosing their infection to the sexual partner. Johns
behavior was reported to legal authorities initially because of a set of unlikely
coincidences. In this case, the sentence you assign will get wide publicity because
network television shows like Larry King Live and Nancy Grace are doing an
intensive series on crimes, criminals, and courts. By doing this, they give the
public a sense of the realities of crimes and the criminal court system. The series
has attracted much attention.
32
Woody et al.
High Just Deserts, Low Deterrence

John is HIV positive and found out about his HIV diagnosis 12 years ago.
He is heterosexual. He did not disclose to any of the women who have been his
sexual partners that he was HIV positive. John did not always use a condom when
he had sexual intercourse with his partners. There was a high risk of HIV being
transmitted to his sexual partners when a condom wasnt used. Documentation
was presented in a court case that he infected four women with the virus that
causes AIDS.
A crime of this sort is highly likely to be detected and to be reported. People
find out and are likely to share with others about someone with HIV having sex
with other sexual partners and not disclosing their infection to the sexual partner.
Eventually this information comes to the attention of legal authorities. In this case,
the sentence you assign will get almost no publicity. Media in this community dont
routinely publish sentencing reports.
Low Just Deserts, Low Deterrence
John is HIV positive and found out about his HIV diagnosis 12 years ago. He
is heterosexual. He did not disclose to any of the women who have been his sexual
partners that he was HIV positive when he had sexual intercourse with them. John
always used a condom when he had sexual intercourse with his partners. There
was a low risk of HIV being transmitted to his sexual partners when a condom
was used. Documentation was presented in a court case that he did not infect any
women with the virus that causes AIDS.
A crime of this sort is highly likely to be detected and to be reported. People
find out and are likely to share with others about someone with HIV having sex
with other sexual partners and not disclosing their infection to the sexual partner.
Eventually this information comes to the attention of legal authorities. In this case,
the sentence you assign will get almost no publicity. Media in this community dont
routinely publish sentencing reports.
ALEX WOODY, M.S., is a doctoral candidate in the Psychology Department at
Ohio University. His research examines rumination as a predictor of physiological
and psychological recovery from stress. His current research focuses on stressinduced changes in attentional control as it relates to rumination and physiological
and psychological recovery from stress.
ABBY L. BRAITMAN, Ph.D., is currently an NIH-funded postdoctoral fellow at
Old Dominion University. Her focus is on quantitative methods, and her research
interests include risky health behaviors among college students, and extending
the efficacy of known interventions to curb such behavior. Her current research
33
includes: investigating the etiology of drinking, identifying profiles of risky drinking, and examining mechanisms of change (especially protective behavioral strategies).
VALERIAN J. DERLEGA, Ph.D., is a Professor of Psychology at Old Dominion
University. His research interests focus on decision-making about self-disclosure
to significant others and social constraints in talking to family, friends, and intimate
partners about personal topics (including sexual minority stressors, experiences
with racial discrimination, and sickle cell disease pain episodes).
BARBARA A. WINSTEAD, Ph.D., is a Professor of Psychology at Old Dominion
University. She is also a faculty member with the Virginia Consortium Program
in Clinical Psychology. Her research focuses on gender and relationships. She is
co-editor with Dr. James Maddux of Psychopathology: Foundations for a Contemporary Understanding, 3rd edition. She is co-PI on an NIH AREA grant examining
minority stress, alcohol abuse and intimate partner violence among lesbian women.
BRITTANY NEILSON, B.S., is currently a doctoral student studying Human
Factors Psychology at Texas Tech University. She was recently awarded the NASA
Texas Space Grant Graduate Student Fellowship and was selected to be a NASA
Langley Research Center LARSS intern for two summers in 2012 and 2014.

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Analyses of Social Issues and Public Policy, Vol. 00, No. 0, 2014, pp.

Motivations for Punishing Someone Who Violates

Correspondence concerning this article should be addressed to Valerian J. Derlega, Psychology

2014 The Society for the Psychological Study of Social Issues

Motivations for Punishment under HIV Nondisclosure Laws

Motivations for Punishment under HIV Nondisclosure Laws

Previous Research on Just Deserts and Deterrence as Motivations for

The Current Study

Motivations for Punishment under HIV Nondisclosure Laws

Study 1: Effects of Just Deserts, Deterrence, and Gender of the HIV-Positive

Motivations for Punishment under HIV Nondisclosure Laws

6.46 (0.83) vs. 4.23** (1.92)

vs. 3.99** (1.68)

Note. **p < .01; *p < .05.

Study 1 Just deserts

Motivations for Punishment under HIV Nondisclosure Laws

deterrence fines (M = 2.40, SD = 2.36), t(317) = 5.11, p < .001, r2 = .08.

Motivations for Punishment under HIV Nondisclosure Laws

Motivations for Punishment under HIV Nondisclosure Laws

Study 1. However, in Study 2, the sexual orientation of the HIV nondisclosure

Motivations for Punishment under HIV Nondisclosure Laws

Guilty or not guilty? Consistent with the findings in Study 1, a majority of

Motivations for Punishment under HIV Nondisclosure Laws

Motivations for Punishment under HIV Nondisclosure Laws

Motivations for Punishment under HIV Nondisclosure Laws

despite the significant indirect effect involving repeating the crime/importance of

Motivations for Punishment under HIV Nondisclosure Laws

Motivations for Punishment under HIV Nondisclosure Laws

Limitations and Future Research

Motivations for Punishment under HIV Nondisclosure Laws

Motivations for Punishment under HIV Nondisclosure Laws

Low Just Deserts, High Deterrence

High Just Deserts, Low Deterrence

Motivations for Punishment under HIV Nondisclosure Laws

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