Public health law

Keynote at Sex and Stigma Matters conference by Alexander McClelland

In May of 2015, I gave a keynote presentation on my research to the annual Healthy Sexuality and Harm Reduction Conference for the Winnipeg Regional Health Authority.  Here is the abstract for the presentation:

Globally, Canada is considered a ‘hot-spot’ for criminalizing the non-disclosure and exposure of HIV. With over 155 prosecutions and more cases on the rise, Canada is known for imposing harsh and punitive penalties against people living with HIV who do not tell sex partners their HIV status, or potentially expose others to infection. A majority of those are charged with aggravated sexual assault, one of the most severe charges in the Criminal Code. Social scientists have documented that the law related to HIV non-disclosure and exposure has been applied asymmetrically, leading to a sense of uncertainty among people living with HIV. Criminal cases related to HIV non- disclosure in Canada are strongly patterned by gender, race, and sexual orientation. But how did we get here? Why is Canada so exceptional in how the criminal justice system has responded to HIV? If we look back throughout history, we can see that in the early days of the Canadian settler-colonial state those infected with diseases of “vice” such as syphilis and gonorrhea were subject to similar legal measures and labeled social outcasts worthy of incarceration. Through a historical examination of a number of cases from the past and present, this presentation will examine the Canadian context of criminalization of HIV and other STIs. We will examine the role of public health in supporting or impeding this increasing practice of criminalizing diseases that are sexually transmitted. We will discuss strategies to end stigma, discrimination and start to work towards the decriminalization of HIV exposure and non-disclosure and the decarceration of people living with HIV.

'Lock this whore up’: public health legislation & other ‘risks’ to public safety by Alexander McClelland

Lock this whore up.png

Last month I presented at the Canadian Law and Society Association annual mid-winter meeting held in Montreal. For the presentation, I addressed what some perceive as an over-reliance on the criminal law to address the HIV non-disclosure in Canada. There have been calls from social scientists and activists to advance the use of public health legislation, regarded as a more ‘benevolent’ instrument of the state to manage people who have not told their HIV-positive status to sex partners. Using examples from two HIV non-disclosure cases in Ontario, I argued that public health legislation is one component of a diverse assemblage of technological formations of legal governance – comprised of public health law and criminal law, as well as civil law and other extra-legal practices – which have come to order the lives of certain classified people with HIV.

Examining the use of public health orders under Section 22 of the Ontario Health Promotion and Protection Act (HPPA), I discussed that these orders act as the first point of entry into a broader heterogeneous assemblage of legal actors, institutions, mechanisms and practices that act in concert to enable forms of surveillance and governance, constituting something altogether different than the stated benevolent intentions of public health. In the discussion I argued furthermore that public health legislation cannot be understood as easily divorced from this assemblage, or understood as a form of jurisprudence that can be applied in a silo. My analysis is grounded in a detailed examination of how public health orders are taken up in media reports, as evidence to inform court judgements, and in the context of psychiatric testimony by experts to classify ‘offenders’ as future risks to ‘public safety’. With a critical inquiry attuned to the social and historical constitution of the legal, I also discussed how these orders are underpinned by logic of risk mitigation, a logic aimed to protect the ‘public’ through governing the biologically and juridically marked viral underclass: the person with HIV who has come to be known as ‘unwilling’ or ‘unable’ to take the precautions to protect others from HIV transmission.