Policing the seropositive body: From individual viral loads to the public spectacle of criminal prosecutions for HIV non-disclosure by Alexander McClelland

For the Ottawa Canadian Law and Society annual Congress Conference meeting in 2015 I presented a collaborative presentation for the keynote panel based on work with my colleague Dr. Adrian Guta. This work will also be presented at the upcoming Surveillance and Society Conference in Barcelona. This is the abstract for the presentation:

This presentation examines the implications of new HIV treatment and prevention technologies in the form of HIV ‘treatment as prevention’ (TasP) and ‘pre-exposure prophylaxis’ (PrEP) in relation to the criminalization of HIV non-disclosure and exposure in Canada and the potential for mandatory treatment adherence. Drawing on an analytic of governmentality, this presentation explores new clinical and public health surveillance technologies focused on the both the care and control of persons living with HIV who achieve an undetectable viral load through antiretroviral adherence, and the ‘high risk’ gay man who uses PrEP(with lower doses of antiretroviral therapy) to protect himself against infection. This presentation considers the implications of these new technologies of risk, surveillance, and the practices of the self for both people living with and the ‘at risk’ who are required to engage in new ways with therapeutic providers who diagnose, prescribe, monitor, and share this information with public health and potentially with law enforcement. 

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

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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.