Managing the Emotional Reverberations of Criminalizing HIV Nondisclosure in Canada

By Jennifer M. Kilty and Michael Orsini

What could be more personal than disclosing that you are HIV positive? When former basketball star Magic Johnson revealed in a teary press conference almost 30 years ago that he was HIV positive, the sports world expressed shock and lauded his courage. In the wake of his announcement, HIV testing rates soared by almost 60 per cent in the US. Yet when the late Hollywood actor Rock Hudson disclosed that he was living with HIV/AIDS just weeks before his death and the news was littered across the tabloids, several of his ex-lovers spoke out angrily about how they had been misled, lied to, and duped by the closeted actor. Hudson feared disclosing his HIV status would force him to be “out” as a gay man in a homophobic film industry. Disclosure – to one’s family, a lover, or to the broader public – is an admittedly rugged emotional terrain.

While great strides have been in the last decades to counter the stigma and fear that characterized early responses to the epidemic, HIV/AIDS continues to evoke strong emotional reactions – from those who are diagnosed, their advocates and allies, politicians, and the broader public. In the early days of the epidemic, children who contracted the virus through tainted blood were banned from attending schools, people’s houses were defaced– and in more extreme cases firebombed. A sensational and devastatingly fast acting mysterious illness, media coverage of HIV/AIDS has long mobilized graphic imagery of lesions and AIDS wasting syndrome to accompany narratives about the ravages it has on the body. Initially, HIV/AIDS was problematically constructed as a ‘gay disease’ and its relegation to an otherwise small and already stigmatized population enabled politicians and the wider heteronormative population to largely ignore it. Former US President Ronald Reagan studiously avoided mentioning the acronym until the end of his second term in office – eight years into the growing pandemic. The history of HIV is thus an emotional one marked by expressions of anger, fear, shame, disappointment and compassion, among others.

Since that time, however, medical advancements in treatment have transformed HIV into a chronic, manageable condition for many in Western countries and governments have started to integrate funding for HIV/AIDS with that provided to other STIs – effectively ending the special consideration once reserved for the illness. It is ironic, then, that just as HIV has become somewhat normalized and fears of AIDS have dissipated, it has become the subject of “exceptional” treatment in the law. In R. v. Mabior (2012), the Supreme Court of Canada brought the country’s second decision pertaining to the criminalization of HIV nondisclosure. HIV advocates and their allies hoped the decision would clarify the 1998 Cuerrier decision regarding the concept of ‘significant risk’ so as to make it more difficult to prosecute someone for failing to disclose their HIV status. Instead, Mabior made the requirements surrounding disclosure of one’s HIV status more stringent – mandating that only when an HIV positive person maintains a low or undetectable viral load (<1500 copies of HIV per ml of blood) and uses a condom can they be exempt from potential criminalization for nondisclosure. Under Canadian criminal law there is no need to prove that the individual intended to infect their partner, nor is transmission required for criminalization to occur. Over 200 Canadians have been criminalized for failing to disclose their HIV seropositivity to a sexual partner, the most common charge being aggravated sexual assault. Not only does this application of the criminal law shift how we understand sexual assault and the concept of consent, it exemplifies how the law comes to colonize different arenas, in this case, public health.

This study examined how the criminalization of HIV nondisclosure is affecting the frontlines of HIV/AIDS service provision. Through in-depth interviews with over 60 frontline workers in AIDS Service Organizations (ASOs) across Canada, we aimed to better understand how criminalization is affecting the trust and counselling relationships service providers have with service users and the ways in which it is shaping how they perform their work. Notably, we were concerned with the emotions that structure this work and that underlie decisions to pursue criminal charges. ASOs have historically operated as supportive and progressive community-based institutions; as important socio-political actors on the frontlines, ASO workers are often the first point of contact for the newly diagnosed and the only point of contact for some of the most vulnerable.

We suggest that criminalizing acts of HIV nondisclosure reflects a return to punitive ways of thinking about HIV that we long assumed had disappeared in recent years. This approach reinforces problematic notions about the responsible HIV subject (who always discloses) and frames those who fail to disclose as liars and sexual predators. Given that about 60 per cent of cases of nondisclosure that have gone before the courts do not involve actual transmission, this use of the criminal law reflects a desire to criminalize and punish for emotional harm rather than physical harm. In the context of the #metoo era, we were particularly interested in how otherwise progressive movements and organizations, perhaps unwittingly, shore up this punitive approach and reproduce problematic tropes about race, class, gender and sexuality, in which certain groups become the targets of rage, anger and ultimately criminalization.

We contend that as HIV became more common amongst heterosexuals, carceral feminist attitudes that support criminalization have grown. Carceral feminism is a white feminist approach that supports increased criminal justice system involvement as the solution to violence against women. Punitive approaches to HIV nondisclosure fail to recognize the inherent uncertainty and complexity of sexual decision-making and the challenges ASO workers face in communicating legal information in what scholars describe as a ‘medico-legal borderland’. We argue that people living with HIV are not ruthlessly intent on transmitting HIV to unsuspecting partners, nor are all ‘victims’ passive or without agency. Yet the emotions that underpin criminalization efforts effectively create such dichotomous subject positions. Using the data gleaned from our cross-country interviews and foregrounding an emotions lens, we highlight the punitive mentalities that underlie criminalization efforts and challenge the wisdom of using the criminal law to combat HIV nondisclosure. Perhaps instead of anger and disgust we should feel greater compassion for people living with HIV who continue to confront stigma and discrimination as a result of their diagnosis.

Jennifer M. Kilty is Associate Professor in the Department of Criminology, University of Ottawa. Her research examines gendered experiences of confinement, the criminalization of HIV nondisclosure and the social construction of criminal figures. Her books include: Demarginalizing Voices: Commitment, Emotion and Action in Qualitative Research (2014, UBC Press), Within the Confines: Women and the Law in Canada (2014, Women’s Press), Containing Madness: Gender and ‘Psy’ in Institutional Contexts (2018, Palgrave), and the Enigma of a Violent Woman: A Critical Examination of the Case of Karla Homolka (2016, Routledge).

Michael Orsini is Professor in the Institute of Feminist and Gender Studies and the School of Political Studies at the University of Ottawa (Ottawa, Canada). He specializes in critical approaches to health policy and politics, and the role of social movements and civil society organisations in policy making. He is currently completing funded research on the role of emotions in policy. Michael tweets @OrsiniMichael.

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