(Ill-legal) Lust is a Battlefield: HIV Risk, Socio-Sexuality and Criminality Author Houlihan, Annette Published 2007 Thesis Type Thesis (PhD Doctorate) School Griffith Law School DOI https://doi.org/10.25904/1912/3628 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/367922 Griffith Research Online https://research-repository.griffith.edu.au (ILL-LEGAL) LUST IS A BATTLE FIELD: HIV RISK, SOCIO-SEXUALITY AND CRIMINALITY Annette Houlihan BA PGradDipA School of Law Faculty of Law Griffith University Submitted in fulfilment of the requirements of the Degree of Doctor of Philosophy May 2007 Synopsis Not so suddenly, HIV diagnoses have become markers of criminality. Since the discursive and clinical histography of HIV infection, desiring/desirable bodies are placed within labyrinths of socio-legal pathology. Dis-eased bodies are punished, not just because of their health status, but due to a conglomerate difference of HIV serodiscordance, interracial and same-sex desire. The HIV transmission offending body is a projection of cultural, medical and legal panics about miscegenation and queer sexuality. The HIV transmission story is reflected and imagined through the textual crimes of offences against the person. But, this crimino-legal tale also flickers its own imagination onto a new cultural milieu, in such a fashion that HIV transmission crimes are culturally anticipated. Consensual desires are silenced in honour of the tragedy of the reckless or intentional HIV transmission offender. HIV infectivity is translated as an injury committed by one party against another. But, the crimino-legal narrative of HIV transmission offences speaks about the policing of desire, just as much as it does about the regulation of Other infectious bodies – as illness and illegality. This thesis maps the socio-legal trajectory of HIV transmission criminality, beginning from a nucleus of HIV transmission charges in the Australian state of Victoria and replicated within other western jurisdictions. A capillary of prosecutions, all point to the Eurocentric, heteronormative interests of HIV transmission crimes. This thesis produces the only documentation of HIV transmission offences in Australia and outlines the case law in Australia, with references to similar prosecutions in western countries (ie the common law jurisdictions of England, i Canada and New Zealand, as well as cases in the United States). Further to this, it provides an intertextual, poststructural critique of HIV transmission jurisprudence. It also demonstrates how the juridical imagination of these crimes is coordinated within scientific, medical, cultural and legal pathologies of disease and desire. In retrospect of the crimino-legal fiction of HIV transmission, science and medicine created a path of pathology where certain bodies, spaces and behaviours were named and blamed. The epidemiological cast of characters, at fault for HIV transmission, predominately named Africa/Africans and homo/bisexuals/gay communities. These hyper-infectious characters (and the spaces they discursively inhabited) were sites/sources of HIV, transporting the virus outside themselves and placing Eurocentric heteronormativity at risk. Early in the socio-medical discovery of HIV, an urban legend emerged in Patient Zero (gay, Canadian, airline steward Gaeton Dugas). The Patient Zero legend was questioned and re-examined, demonstrating the flaws of hydraulic and linear graphing of risk. Yet, this flawed narrative underpins contemporary HIV transmission prosecutions. Antiquated HIV theories survive in law, but also in culture to produce HIV risk culpable/exculpated bodies. In the moment of pleasure, consensual sex is rearranged to create Other bodies as responsible (for their own infection) and irresponsible of their (legally imposed) HIV risk duties. The HIV transmission myth is much larger than just the intersections of law and the sciences. Miscegenation, queer desire and HIV experience a familiar place in film and television. Appearances of Other racial and sexual desire have uncomfortable locations, the collectivity of HIV and Other desire renders the body culturally culpable. Consent has distinct crimino-legal definitions, especially within the jurisprudence of HIV transmission. To understand criminal law’s definition of sexual ii consent requires a silencing of mutual desires/pleasure. Claims that sexual and racial transgression is policed through law are evidenced in the exculpation of Eurocentric, heteronormative desires in cases such as R v Clarence. But, this thesis also juxtaposes these crimes of sexual disease risk against prosecutions of sadomasochism (s/m). The preeminent case in this area is R v Brown, where esoteric same-sex desire created imagined HIV panics. This case is compared to heterosexual s/m cases where actual harm/violence is explained away. The thesis concludes with an overview of recent HIV transmission prosecutions. The cast of (HIV criminal) characters is shifting, but the criminal law still punishes Other desire. The thesis also explores how the criminalisation of HIV transmission impacts on HIV/AIDS service providers, describing the mixed metaphors and fragmented discourses about HIV risk, sexuality and responsibility. New directions in HIV transmission crimes are slippages to socio-legal memories, when Other desires were illicit. But, the ill-legality of HIV glosses over the local, ordinary aspects of HIV infectivity and consensual desire. iii STATEMENT OF ORIGINAL OWNERSHIP The work contained in this thesis has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Signed: _________________________________________________________ Date: _________________________________________________________ iv TABLE OF CONTENTS ACKNOWLEDGEMENTS…………………………………………………………ix CHAPTER I: INTRODUCTION: (other) SMOOTH CRIMINALS, HIV TRANSMISSION CRIMINALITY………………………………………………....1 I BACKGROUND……………………………………………………....1 II SHIFTY BUSINESS: MOVING HIV FROM PUBIC HEALTH TO CRIMINAL LAW……………..……………………………………………..10 III METHODOLOGY……………………...……………………………14 IV EXISTING LITERATURE…………………...……………………...18 V CHAPTER OUTLINES…..………………………………………….22 CHAPTER II: OFFENCES AGAINST THE (moral) PERSON: HIV TRANSMISSION OFFENCES IN AUSTRALIA…………………………………...……………...…...……...………..27 I INTRODUCTION………………………………………..………….27 II VICTORIAN PUBLIC HEALTH LEGISLATION…………..……..28 III THE CRIME OF HIV TRANSMISSION IN VICTORIA..…………32 IV RECKLESS ENDANGERMENT………..………………………….45 V HIV CRIMINAL CASES IN OTHER AUSTRALIAN JURISDICTIONS………………………...…………………………………..53 A Western Australia.………….…………………………….......53 B New South Wales……………………..………………………55 C Northern Territory…...………………………………...……..56 D Queensland…………………………..……………………….57 E South Australia…………..……………...…………………....58 VI CONCLUSION………...…………………………………………….59 CHAPTER III: ONCE UPON A NARRATIVE: TELLING TALES OF SEX AS CRIME…....................................................................................................................63 I PRELUDE……………………...…………………………………….63 II INTRODUCTION: RISKING IT ALL FOR SEX; SOCIO-SEXUAL OTHERNESS AND THE CONTINUUM OF HIV…………………………………….……………………………………..65 III HIV SEXUAL INFECTION: BODIES AT PLAY BECOMING BODIES AT WAR……………………………...……………………………70 IV LEGAL SEXUALITY: THE CRIMINO-LEGAL LOGICS AND LOCATIONS OF SEXUALITY……………………………………………..78 V UNDERSTANDING HIV TRANSMISSION VICTIMOLOGY……………………………………………………………..80 VI NARRATIVE CRIMINALITY…………………………………..….83 VII FOLKLORES AND FAIRYTALES……………………………...….88 VIII ‘IT’ COULD HAPPEN TO YOU: THE HETERONORMATIVE RISK NARRATIVE…………………………………….……………………93 IX CONCLUSION: AND THEY ALL LIVED HAPPILY EVER AFTER…………………………………………………………………..….101 v CHAPTER IV: NON-FICTIONS’S FICTION: THE MEDICAL TRUTH OF HIV………………………………………………………..………………………..105 I INTRODUCTION……………………………………...…………………...105 II THE SCIENTIFIC ‘REAL’ FAIRYTALE PART 1: GAY RELATED IMMUNE DEFICIENCY (GRIDS)……………………...…………………107 III THE SCIENTIFIC ‘REAL’ FAIRYTALE PART 2: PATIENT ZERO…………………………...…………………………………………...109 IV THE SCIENTIFIC ‘REAL’ FAIRYTALE PART 3: OUT OF AFRICA………………………………………………………………….....115 V AN-OTHER SCIENTIFIC TALE PART 4: HUMAN IMMUNODEFIENCY VIRUS…………………………..…………………121 VI EPIDEMIOLOGICAL TRUTH(tales): RISK AND THE FALSE POSITIVE…………………………………………………………………..123 VII CONCLUSION…………………...………………………………...134 CHAPTER V: CULTURES OF CULPABILITY/CULTURES OF CRIME……………………………………………………………………………..137 I INTRODUCTION…………………………………………...……...137 II THROUGH THE (monochrome) LOOKING GLASS: CULTURAL REPRESENTATIONS OF MISCEGENATION………………………...…141 III IN THE SHADOWS: CULTURAL REPRESENTATIONS OF SAME-SEX DESIRE AND HIV………………..………………………….145 IV HIV ON TELEVISION……………………….………………..…...149 V ‘TIL DEATH DO US PART: THE MARRIAGE OF AIDS, DEATH AND THE OTHER IN CINEMA…………………..………………………157 VI THE REIFICATION OF BIFURCATED HIV BODIES……….………………………………………………………….…171 VII EDDIE SAVITZ: HIV POSITIVE VILLIAN……………………………………………………...…………….172 VIII MAGIC JOHNSON: HIV POSITIVE VICTIM…………..………..178 IX FALLEN VICTIMS: THE LOST AND FORGOTTEN HIV ROLE MODELS…………………...……………………………………………….183 X CONCLUSION……………………………………………..………186 CHAPTER VI: THE YOUNG AND THE RECKLESS: CONCEPTUAL LEGAL FRAMEWORKS AND HIV CRIMINALITY……………………………………………………………………191 I INTRODUCTION…………………………………………...……………...191 II MENS REA………………...……………………………………….194