(Ill-legal) Lust is a Battlefield: HIV Risk, Socio-Sexuality and Criminality

Abstract

Not so suddenly, HIV diagnoses have become markers of criminality. Since the discursive and clinical histography of HIV infection, desiring/desirable bodies are placed within labyrinths of socio-legal pathology. Dis-eased bodies are punished, not just because of their health status, but due to a conglomerate difference of HIV serodiscordance, interracial and same-sex desire. The HIV transmission offending body is a projection of cultural, medical and legal panics about miscegenation and queer sexuality.

The HIV transmission story is reflected and imagined through the textual crimes of offences against the person. But, this crimino-legal tale also flickers its own imagination onto a new cultural milieu, in such a fashion that HIV transmission crimes are culturally anticipated. Consensual desires are silenced in honour of the tragedy of the reckless or intentional HIV transmission offender. HIV infectivity is translated as an injury committed by one party against another. But, the crimino-legal narrative of HIV transmission offences speaks about the policing of desire, just as much as it does about the regulation of Other infectious bodies – as illness and illegality.

This thesis maps the socio-legal trajectory of HIV transmission criminality, beginning from a nucleus of HIV transmission charges in the Australian state of Victoria and replicated within other western jurisdictions. A capillary of prosecutions, all point to the Eurocentric, heteronormative interests of HIV transmission crimes. This thesis produces the only documentation of HIV transmission offences in Australia and outlines the case law in Australia, with references to similar prosecutions in western countries (ie the common law jurisdictions of England, Canada and New Zealand, as well as cases in the United States). Further to this, it provides an intertextual, poststructural critique of HIV transmission jurisprudence. It also demonstrates how the juridical imagination of these crimes is coordinated within scientific, medical, cultural and legal pathologies of disease and desire.

In retrospect of the crimino-legal fiction of HIV transmission, science and medicine created a path of pathology where certain bodies, spaces and behaviours were named and blamed. The epidemiological cast of characters, at fault for HIV transmission, predominately named Africa/Africans and homo/bisexuals/gay communities. These hyper-infectious characters (and the spaces they discursively inhabited) were sites/sources of HIV, transporting the virus outside themselves and placing Eurocentric heteronormativity at risk. Early in the socio-medical discovery of HIV, an urban legend emerged in Patient Zero (gay, Canadian, airline steward Gaeton Dugas). The Patient Zero legend was questioned and re-examined, demonstrating the flaws of hydraulic and linear graphing of risk. Yet, this flawed narrative underpins contemporary HIV transmission prosecutions.

Antiquated HIV theories survive in law, but also in culture to produce HIV risk culpable/exculpated bodies. In the moment of pleasure, consensual sex is rearranged to create Other bodies as responsible (for their own infection) and irresponsible of their (legally imposed) HIV risk duties. The HIV transmission myth is much larger than just the intersections of law and the sciences. Miscegenation, queer desire and HIV experience a familiar place in film and television. Appearances of Other racial and sexual desire have uncomfortable locations, the collectivity of HIV and Other desire renders the body culturally culpable.

Consent has distinct crimino-legal definitions, especially within the jurisprudence of HIV transmission. To understand criminal law’s definition of sexual consent requires a silencing of mutual desires/pleasure. Claims that sexual and racial transgression is policed through law are evidenced in the exculpation of Eurocentric, heteronormative desires in cases such as R v Clarence. But, this thesis also juxtaposes these crimes of sexual disease risk against prosecutions of sadomasochism (s/m). The preeminent case in this area is R v Brown, where esoteric same-sex desire created imagined HIV panics. This case is compared to heterosexual s/m cases where actual harm/violence is explained away.

The thesis concludes with an overview of recent HIV transmission prosecutions. The cast of (HIV criminal) characters is shifting, but the criminal law still punishes Other desire. The thesis also explores how the criminalisation of HIV transmission impacts on HIV/AIDS service providers, describing the mixed metaphors and fragmented discourses about HIV risk, sexuality and responsibility. New directions in HIV transmission crimes are slippages to socio-legal memories, when Other desires were illicit. But, the ill-legality of HIV glosses over the local, ordinary aspects of HIV infectivity and consensual desire.