Criminal law

The Movement to End HIV Criminalization /  by Alexander McClelland

HIV criminalization “describes the unjust application of the criminal law to people living with HIV based on their HIV status – either via HIV-specific criminal statutes, or by applying general criminal laws exclusively or disproportionately against people with HIV”. Human rights advocates and organizations have tracked hundreds of cases worldwide, identifying the relationship between systemic forms of discrimination and HIV criminalization.

This panel discussion explores the social justice implications of HIV criminalization. It will feature the world premiere of the 2016 documentary film, HIV Is Not A Crime. See the trailer here!

This event is primarily in English. The room is accessible via elevator. There are no steps to get into the building.

Featuring:

Edwin Bernard, Global Co-ordinator, HIV Justice Network

The Global Picture: Surveying the State of HIV Criminalisation:

Presentation Abstract
This presentation will introduce audience members to HIV criminalisation from a global perspective, and why it is problematic for public health as well as human rights. It will highlight countries that have HIV-specific criminal statutes, as well as jurisdictions, such as Canada, which, in spite of not having HIV-specific criminal laws on the books, have vigorously prosecuted people living with HIV.

Alexander McClelland, Concordia University

Criminal Charges for HIV Non-disclosure, Transmission and/or Exposure: Impacts on the Lives of People Living with HIV in Canada

Presentation Abstract
This presentation will elaborate some initial findings from an ongoing research project that is examining the lived experiences of people who have been criminally charged in Canada in relation to HIV non-disclosure, transmission and/or exposure. Canada is well-known as a country with high rates of criminalization towards people living with HIV. Through a series of qualitative interviews this project seeks to understand the material outcomes for HIV-positive people who live their lives in a negative relation to the law due to being institutionally marked as a ‘criminal’ and a ‘risk to public safety’ through the process of criminalizing HIV non-disclosure, transmission and/or exposure.

Laurel Sprague, Research Fellow in HIV, Gender, and Justice, HIV Justice Network

Your Sentence is Not My Freedom: Feminism, HIV Criminalization and Systems of Stigma

Presentation Abstract
HIV criminalisation takes different form in different legal contexts, yet always arises from social hierarchies, and related stigmatising attitudes, based on gender, sexual orientation, class, and other forms of marginalized minority status. Examining the Canadian Context, in which prosecutions for HIV non-disclosure have relied primarily on the use of sexual assault laws, provides important insights into the ways in which HIV-related stigma creates an interlocking web of discrimination for people living with and most vulnerable to HIV. This presentation explores ways in which gender is used both to justify HIV criminalisation and to prosecute people who are seen to violate gendered norms of behaviour, then discusses ways in which Canadian feminists have led the critical response to the use of sexual assault laws in HIV non-disclosure prosecutions.

Andrew Spieldenner, Hofstra University

The Cost of Acceptable Losses: Exploring Intersectionality, Meaningful Involvement of People with HIV, and HIV Criminalization

Presentation Abstract
Intersectionality is a vital part of engaging in social justice coalition work. In HIV criminalization efforts, intersectionality means understanding how place, position and power get enacted and acted on. I will explore how intersectionality functions in the lives of PLHIV, and in particular how the meaningful involvement of people with HIV requires a complex engagement with intersectionality. Organizing around HIV criminalization requires an intersectional understanding rooted in the notion that none of us are acceptable losses. I will utilize two case studies in the American context: California and Colorado.

Introduced by Liz Lacharpagne, COCQ-SIDA and Martin French, Concordia University

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. 

WhoreLock/Up 27 of 185 /  by Alexander McClelland

Public projection and spectacle collaboration between Mikiki & Alexander McClelland

****This is not a trigger warning, this is our lives: presentation contains graphic discussions of various forms of violence****

As a collaboration between artist Mikiki and doctoral student Alexander McClelland this work pieces together media reports and juridical documents so as to understand how people’s lives are discursively constructed into cases, cases where individual people with HIV are transformed and come only to be known as ‘risks’ in need of care, control, regulation, surveillance, and incapacitation. In such cases, legal documents and media reports construct histories, histories in the service of an institutional logic that this at odds with the lives of people living with HIV. Rather than engaging in the normative debates presenting ‘innocent’ subjects in contrast to the ‘guilty’ mark of institutions, this collaborative work aims to understand the materiality of being marked as a ‘criminal’ and a ‘risk’ to public safety, and how hypervisibility is a tool used by state and private sector institutions to govern and create a public panic around HIV.

As a growing phenomenon in Canada – one that is disproportionate in scope to other countries– the expansion of legal governance of HIV is part of a fast growing trend in Canada, where there have been upwards of 185 criminal law cases since 1989 related to exposure or non-disclosure of HIV. Cases are on the rise, with high rates of prosecution for aggravated sexual assault charges that with a mandatory registration as a sex offender and sentence of up to life in prison. In these cases people’s photographs are plastered across media outlets with sensationalized headlines condemning the person with HIV as a criminal, vector of disease and dangerous, reckless and irresponsible person.

Read more here!

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.