Criminal Sexual Conduct and the Politics of HIV Disclosure

Michael Orsini and Jennifer Kilty discuss the criminalization of failure to disclose HIV status.

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Calculating and ruthless.” That is how a judge described an HIV-positive man who, on March 9, was found guilty of attempted murder and aggravated assault for failing to disclose his HIV status to sexual partners. For this, the man was sentenced to 14 years in prison – a harsh sentence consistent with Canada’s dubious record as one of the most aggressive countries in prosecuting people for failing to disclose their HIV status.

In an age of anxiety about sexual risk-taking and HIV, the courts appear to be in the business of channeling a range of emotions, notably anger, disgust, and fear. Scholars refer to this process as “the emotionalization of law.

Judge Bonnie Warkentin’s decision casts the defendant as a veritable “AIDS monster” intent on terrorizing innocent victims with a noxious substance (his semen). His victims are portrayed as being forced to live in an “environment where many countries still stigmatize and discriminate against those living with HIV.” While Judge Warkentin laments that the victim “will live in the shadow of this infection in all aspects of life,” no such sympathy is extended to the defendant. Meanwhile, he faces considerable stigma as the very public face of criminal sexual conduct.

Model of HIV virus - Smithsonian Museum of Natural History (Photo Credit: Tim Evanson, 2012)

Model of HIV virus – Smithsonian Museum of Natural History (Photo Credit: Tim Evanson, 2012)

In handing down her decision, Judge Warkentin also ordered that the defendant, Steven Boone, be supervised for five years following his release. She deemed the supervision necessary to ensure that Boone would take his antiretroviral medication, receive treatment for personality disorders, and undergo “random drug and alcohol testing.” As well, according to the judge, the supervision order would help to control his “substantial risk to re-offend”. The application of long-term supervision requirements at sentencing is evidence of two things: doubts about the rehabilitation potential of convicted sexual offenders (presumably, in part, due to lack of adequate supports); and beliefs about the lack of will or ability to modify behaviour.

While it is tempting to bracket this sentence and the circumstances surrounding the case as exceptional, there are troubling aspects to this case that merit closer attention. First, it replays common tropes that are reminiscent of the early years of the HIV epidemic. The media coverage made much of Boone being a self-described “Poz vampire” who was interested in infecting younger, unsuspecting men. Yet, scarcely did the media mention his reported mental health problems. The narrative of a cold, calculating man hunting his next victim does not fit well, of course, with a portrait of a complex person who might be more vulnerable than presumed.

Critics of criminalization rightly point out that using the criminal law to punish individuals living with HIV/AIDS discourages people from getting tested in the first place, since doing so might expose them to criminal prosecution. Currently, approximately 25 per cent of people living with HIV do not know their status.

The decision to disclose one’s HIV status is deeply personal. While research suggests that many people living with HIV support disclosure, telling someone you are HIV-positive can put you in harm’s way, especially in communities with long and entrenched histories of homophobia. Paradoxically, even while advances in HIV treatment mean that, for some, HIV can be managed as a chronic condition, stigma remains stubbornly attached to an HIV diagnosis.

While there are times when the criminal law may be an appropriate response, as even some opponents of criminalization acknowledge, this case is tricky because the facts seem to speak for themselves. Boone was portrayed as a deceptive guy, preying on young, unsuspecting men with an express intent to infect them. He was considered so dangerous that prior to and following his arrest the Ottawa police plastered the city with ‘Wanted’-style posters to warn potential sexual partners to steer clear of Boone or risk HIV infection.

If we assume that the overwhelming majority of people living with HIV do not seek out unsuspecting partners to infect, cases like this reinforce a false dichotomy between ethical sexual conduct (open disclosure at all times) and criminally reprehensible sexual conduct (failing to disclose, lying about your HIV status, or intentionally striving to transmit the virus).

This case might be comforting to those who do not relate to the specific details; those who do not believe this could happen to them. But decision-making and risk-taking in the context of HIV are often complex. They cannot be reduced to facile constructions of guilt and innocence.

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Michael Orsini is a Professor in the School of Political Studies at the University of Ottawa. He is the nominated Principal Investigator of a CIHR-funded Catalyst grant [Bioethics on the Ground: Criminalization and the Changing Landscape of HIV/AIDS Advocacy] @OrsiniMichael

Jennifer Kilty is Associate Professor of Criminology at the University of Ottawa. She is Co-Principal Investigator of a CIHR-funded Catalyst grant [Bioethics on the Ground: Criminalization and the Changing Landscape of HIV/AIDS Advocacy]