The Criminalization of HIV Non-Disclosure & Exposure: Impacts of Legal Violence on the Lives of People Living with HIV by Alexander McClelland

This presentation prepared for the 2017 Annual Conference for the Canadian Association of HIV/AIDS Research elaborates some initial findings from an ongoing qualitative research project examining the lived experiences of people who have been criminally charged, prosecuted or threatened with charges in relation to HIV non-disclosure and/or exposure in Canada, a country well known for being a global hot spot for this application of the law.

I am situated in the fields of critical socio-legal studies, surveillance studies and feminist ethnography. Aligned within the historical trajectory of critical social science research attention is paid to systems of oppression, and the resulting suffering of social actors, with the aim of making people contend with that suffering as an act supporting efforts toward forms of emancipation.

In very general terms, research on the issue of HIV criminalization has often used the HIV response and public health imperatives as the frame of analysis. Such as, elaborating that punitive laws cause a chilling effect in healthcare interactions or can deter HIV testing and therefore there is a negative public health impact. This research is very valuable and has been helpful for advocacy, but has been organized in ways which misses the perspectives of those who had faced criminalization first-hand and their suffering under punitive laws.

My project shifts the frame of analysis to the experiences of people with lived experience of punitive criminal and public health laws. I have been working to understand what the experience of being labeled a criminal and risk to public safety means for those who live it.

An outcome of this shift in orientation is that attention becomes focused toward the suffering of people labeled ‘criminal’, the criminal justice system itself, and the role of punishment in Canadian society.

Methodologically, my work is aligned with feminist forms of ethnographic sociological research. I approach my work using a qualitative inquiry that allows for a interactive process in the development of knowledge on people’s lives. 

Here the frame of analysis is the daily lives of people who are criminalized, and the role of the researcher is to centrally place people’s lived experiences first-hand in the research.

I engaged in a wide range of field work, working with multiple people, multiple times over the course of a year. I trust people with their own stories and to be experts on their lives.

With this approach I am resisting forms of research that turn people's lives into a "cases" to be studied (a common approach with research on legal and criminal phenomenon). I resist approaches where living subjects with agency are turned into an object of analysis on paper. Where a person's experiences are made into a knowledge commodity from which researchers build forms of exclusive expertise and capital. Or, which can force us to frame complex nuanced phenomenon into abstracted ways that are disconnected from the social world. My work tries to resist these forms of abstraction and reduction.

To elaborate my approach, I wanted to share these two pictures that one of the people in my study shared with me. This was his daily lived reality for over four years. This is what he saw and the space he inhabited. We often do not often see inside prisons. Inside this one, the man who gave these photos to me was witness to multiple violent beatings. He was routinely denied access to healthcare as a form of punishment by guards. This is where he was when he missed important life events in his family on the outside. Sharing these pictures is part of helping to shift the frame of how we see this issue towards the perspectives of people and their everyday lives.

Privacy is extremely important for criminological research. It is doubly important for people who have had their trust broken many times, who have repeatedly had their HIV status and charges outted by police and media, or they have had their privacy breached by their doctors and nurses (people they assumed protected their confidentiality).

This is the first project of it's kind focused on qualitatively interviewing solely people with lived experience of criminalization related to HIV in Canada, and as a result, I had to do a whole range of research on the privacy implications of my work. I then designed a detailed protocol around protection of privacy, which is very similar to that of an investigative journalist. One of the contributions of this project is the attention to processes around confidentiality.

The process I have undertaken explicitly aims to protect against the potential breach due to a subpoena– as the outcome could very negatively impact the participant’s lives.  There was a complex and rigorous ethics review process which I hinged on the protection of privacy of participants in the study.

Outside of methodological privacy concerns, many of the people in my study are highly socially marginalized and do not have access to privacy in their daily lives. Tim Horton’s should have been one of my sponsors – you’d be surprised how many of my interviews were done next to those fake Tim Horton’s fireplaces.

Also with privacy, when shifting the frame of analysis to the lives of people who have lived criminalization, some common things we do when talking about this issue can become questionable. For example, using the last name of people to refer to precedent setting or common cases- a normal practice that goes often unquestioned (something I have done regularly when talking about the 2012 Supreme Court decisions). But once you talk to the people whose names are reproduced over and over again it becomes apparent that this can be an unjust practice as it is repeatedly disclosing someone’s HIV status and criminal charge without their consent. The practice goes unquestioned as people with histories of criminalization are denied eligibility to have autonomy over their own life information is so many ways. And while this one might seem small, understanding these small practices, which can do injustice can help us to see things from the perspectives of those who have lived it.

To give people a sense of the project’s scope, I’ve included some insights. My study uses a purposive sample, meaning I aimed to target a specific group of people – those with experiences of being charged with in relation to HIV exposure and non-disclosure. We know of around 184 people with this experience in Canada. The available sample of people to interview is constrained as it is widely diverse, and is not easy to find, or are in one discreet location or sub-culture. Some of these people are not possible to interview as as they are incarcerated and Corrections Service Canada regulations about which prisoners can be eligible to participate in research projects, other people have been deported, and some have died or been killed.

I have not yet interviewed people who are incarcerated (some are accessible, others are not depending on treatment in institution). I have interviewed people with histories of incarceration.

I was in touch with twenty-four different people, but for a range of reasons, including incarceration they have not been eligible to connect with me due to bureaucratic barriers.  Due to how racialized this situation is, it is important to note that a majority of those not eligible people were black men charged and/or prosecuted in relation to heterosexual sex. Some were in the process of a case and it was decided by their lawyers that they should not participate. Although, being in a ongoing trial did not automatically exclude someone, as I did also speak to a number of people who were in the middle of various court proceedings.

I conducted twenty-seven interviews with fourteen people, interviews were around one-hour long.

My work also has a strong empirical grounding in archival research on case files, media stories and other historical documents.

Because this study is unique, some people have been interested in these types of enumerable data. So I am making them available in a limited fashion. But I need to caution that my research resists processes that reduce unique and complex life experiences into variables that allow people to generalize. This research project is not about producing generalizable findings that can be widely applied.

And, for a range of reasons, as I indicated in the previous slide, is it not possible to garner a sample of participants that is exactly representative of what we understand the demographics of these cases to be. This could be due to where people are, my own social position, bureaucratic barriers, people’s own stigma and fear, and the fact that due to forms of violence while incarcerated, or due to their natural life course, people have died.

But ultimately elaborating my research in this way in numbers helps provide one sliver of an insight, but may do a disservice, and misses a more complex and nuanced understanding how people’s lives and experiences will be further elaborated in subsequent research findings that I will develop.

To explore suffering I engage with the notion of legal violence. This is a concept that helps elaborate the relationship between law and violence, and the consequences faced by people labeled as criminals. Here we can understand violence not always as a direct physical blow from one person to another, but rather violence as the outcome of a system, or inaction and failure of a system. 

People can be subject to forms of legal violence when they are placed in a negative relation to the law. People living with HIV today in Canada often live in a negative relation to the law just due to the fact that they are HIV-positive. We can very easily be placed in a tenuous relationship with our legally regarded personhood. As are many marginalized people, this form of violence is a colonial violence, a racialized violence, homophobic and misogynistic violence. People who also are institutionally marked as criminals exist in a negative relation to the law, they can be people who are rendered civilly and socially dead under legal regimes. I draw on this notion of living in a negative relation to the law through the work of Colin Dayan.

Living in a negative relation to the law means that one is rendered less of a person with codified rights, less of a person who is in need of protection from the law, and is rather regarded as an object of risk, one that legally constituted persons are to be protected from– protected from through forms of control, coercion and incapacitation.

Removing someone’s autonomy, limiting their right to liberty, marking them a a risk to the safety of others, as people who are to be under heightened surveillance. These are forms of violence that comprise the unmaking of a person through law, and these forms of violence come to organize the lives of people who are criminalized in relation to HIV non-disclosure and exposure. These forms of legal violence then make possible a whole array of other forms of violence.

Two other big word concepts that are also important for this work are inter-institutionality and interlegality (think intersectionality, but with laws and institutions). These concepts became important as a way to explain the systems of oppression which organize people’s lives when threatened with charges, charged or prosecuted.  This complex array of institutions includes public health, criminal justice, healthcare etc. They may have different governing logics, jurisdictions and rationalities (sometimes complementary, or contradictory), which can have, in their integrated effects, outcomes that would not be possible through one of the legal systems, or institutions working alone.

These concepts help to explain how interconnected systems are and that this issue of HIV criminalization is not just a discreet criminal law issue or, or an issue that can be solved via public health laws. Explicating the complexity of systems of oppression helps to understand how to respond, and also challenges the assumption that public health institutions, policing, community-based organizations, and criminal law institutions act distinctly from one another, and that they operate using different forms of distinct knowledge.  Because it is much more complex and intertwined than that.

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The consequences of legal violence and all these laws and institutions working simultaneously is that people can be punished more harshly, and in diverse, far-reaching ways that extend beyond just their official sentence, if they are prosecuted. Penality is just another word referring to the punishment of people.

All people who are labeled criminal in Canada are subject and vulnerable to violence. But people who are labeled as criminal in relation to HIV non-disclosure and/or exposure face a environment of amplified punishment.

This amplification of punishment begins as soon as the charges are threatened or applied and does not relate to a guilty verdict.

Twelve of the people I spoke with were charged with aggravated sexual assault – which is one of the most serious charges in the criminal code.  Two of the people were threatened with charges by police, but charges were never laid. Seven of the people are now registered sex offenders. As a result of being on the registries they cannot get the jobs they had previous experience doing, which means their economic security is constantly threatened far after serving a sentence.

I have tried to explicate a typology to help analyze the punishment that people face.

Some forms of punishment are formal and sanctioned and can include forms of surveillance and regulation that are institutionally enacted into people. Punishment here is focused on reducing of capacities and risks. It is organized around forms of containment, regulation, and compromising personal autonomy security and safety. An example from this project would be people being housed in administrative segregation (which is 23.5 hours a day in a cell alone) often stated as an extension of protective custody and a way to protect the person from the violence of other incarcerated people.

Informal forms of punishment are interpersonal, causal and daily forms of stigma, discrimination, abuse and violence that are enabled after someone is institutionally marked as a criminal in relation to HIV specific crime. Building on the example of administrative segregation, an informal punishment would be corrections guards leaking information about a person’s HIV status and sexual assault charges to other prisoners, thus putting a that person in a context where they will be regularly and severely beaten due to having HIV and a rape charge. Beatings which ultimately then lead to that person formally being put into administrative segregation.

So you can see that these two forms of penality, formal and informal, rely on each other and are intertwined in different ways.

And it is important to note that police, prison guard and prisoner beatings were indicated numerous times by the people I spoke with.

This text message to me from one person involved in the project elaborates how penality extends into the everyday life of people and how it circumscribes the life chances of people – in the case of this man, the charges were ultimately dropped. But due to being in the media he is regularly denied housing and jobs due to having an easily Google-able history of being charged with aggravated sexual assault and having HIV. 

As a result of the ongoing stigma related to their cases, those who have served time, or had their charges stayed or dropped still state that the past case impacts their lives. People have been denied jobs and housing because when their names are Googled information about them being a rapist with HIV comes up. Their economic security continues to be threatened long after they have served their time, or charges were dropped.

While people are under heightened policing, surveillance and scrutiny, they are simultaneously under protected and under supported. People describe many instances of severe lack of knowledge on behalf of police officers, corrections officers, lawyers and judges related to HIV. Often out-dated, or blatant misinformation was communicated by people making decisions about people's lives.

This meant that those charged were placed in a position where they had to educate the people who were tasked with arresting and punishment them, or just be faced with decisions being made based on fear and ignorance. A few examples: A judge not allowing a witness in one case for fear that their HIV status would contaminate the courtroom, a corrections officer holding a man down on the ground with his boot saying he would never touch someone who had HIV for fear of infection, instances of officers wearing gloves and face masks, and instances of lawyers counseling people to plead guilty when the person had an undetectable viral load and no transmission occurred. In these instances, the plea was taken out of fear and for family.

As a result of their experiences, every person I spoke with told me they had tired to commit suicide, or had long periods of regular suicidal ideation. All of them also now have a complex and strained relationship with society. Many are very angry at society, a society, which took their personhood away and has treated them as less than human. All of this violence enacted towards them because of a crime that is entirely non-violent, and in which the notion of harm is an ideological one rooted in HIV stigma and AIDS-phobia. In many instances people indicated to me that they were working to take care of their health and others, which is associated with preventing transmission. But still they were harshly punished due to how the law is currently applied.

To close, I would like to reflect on the notion of bearing witness. I mobilize this concept linking it to a critical approach. Bearing witness to suffering is what I understand to be an ethical approach to research and action in a unjust world.

Bearing witness, as a notion, acknowledges my role as an active observer with ethical obligations. To take care in how I handle the complexity of the information I am collecting.

The people I have been working with engaged in the project as they wanted others to bear witness to what has happened to them as a form of healing and justice. 

This project is about revealing these forms of legal violence, ones that are simultaneously institutional and interpersonal. Violence that is often obscured through bureaucracy, or obscured because the people onto whom this violence is enacted have been deemed unworthy of living as safeguarded persons.

Through this work I hope we will be better positioned to deem those situation unacceptable, and to contribute towards critiques challenging the administration of punishment in our society. To bear witness so that we must contend with these experiences and call for action.