An Introduction to a Different Kind of Conversation

Last summer, friends and I organized an intervention at Fierté Montréal, the annual pride festival and parade in Quebec’s largest city. Activists, artists, and rabble-rousers from Pervers/Cité, SéroSyndicat, and AIDS Community Care Montréal marched together behind a large “VIH/HIV ≠ CRIME” banner in what has become a commercialized orgy of product placements, pandering politicians, and straight people who think we throw better parties—which of course we do. But that Sunday morning we carried a sobering political message that bewildered many onlookers unaware of why we were there and why we were angry. We were in essence the proverbial party poopers, ruining the festive atmosphere with a political demand that we collectively address the criminalization of HIV-positive people as a community that is disproportionately affected by the ongoing epidemic. The moment of silence observed every year during the parade to remember the dead does little to protect the living from the legalized discrimination.

Of course the criminalization of HIV-positive people is nothing new. From the onset of the epidemic, heterosexist, racist, xenophobic, and ablest fantasies of the religious right and elected moral conservatives of all major political parties congealed around legislation to quarantine and outright criminalize HIV-positive people. This includes Lyndon Larouche’s Proposition 64 in California (1986) and the Social Credit Party’s Health Bill 34 in British Columbia, Canada, (1987) that called for quarantining HIV-positive people as well as the media spectacle prosecutions of Charles Ssenyonga (1996), Nushawn Williams (1997), and Johnson Aziga (2008). Being positive has always been a profound legal liability, especially if you are already a part of overpoliced communities. On that Sunday morning march last summer, however, we were trying to bring attention to the increasing number of prosecutions for nondisclosure over the last decade. Today thirty-two U.S. states still have laws criminalizing HIV nondisclosure, and other states and countries like Canada use sexual assault laws to criminalize nondisclosure. Over 200 people were prosecuted for HIV nondisclosure in the United States between 2008 and 2014 and more than 145 have been prosecuted in Canada.¹

Although criminal law has remained largely unchanged, over the last three decades our knowledge about risk, transmission, and treatment has significantly improved. Unfortunately, most of these advances continue to be ignored by the law. For example, spitting and biting, which carries no significant risk for transmitting HIV, has been cause for 46 prosecutions in the United States since 2008, most of which involved a police officer being spit upon. Charges ranged from “aggravated assault on a police officer by means of a dangerous weapon (saliva)” to “bioterrorism” with sentences as long as 35 years.²

As the Center for HIV, Law, and Policy notes, these laws have little impact on people’s risk behaviors and largely undermine public health goals, yet they remain an active part of our legal framework for dealing with this disease.³ The Canadian AIDS Treatment Information Exchange (CATIE) echoes these claims and further notes that by imprisoning HIV-positive people we are creating an environment where high-risk behaviors are common and prevention tools scarce.⁴

The following five pieces take a broad approach to addressing the criminalization of HIV in both content and form. Activists, artists, and those directly affected by HIV criminalization command our attention to the injustices of our legal systems in the United States and Canada at the intersections of HIV/AIDS and race, gender, class, sexuality, and settler colonialism. Notably absent from this forum are the voices of those working in the social sciences, public health, public policy, and social work who have come to dominate contemporary conversations about HIV/AIDS. Level-headed social and biomedical science, along with legal scholarship, have taken center stage in our intellectual responses to the ongoing crisis. This collection of short essays is a small corrective, perhaps even a reminder that HIV/AIDS is an epidemic of signification, as Paula Treichler noted thirty years ago.⁵ Artists continue to make meaning from the epidemic and the material conditions that frame it, and those who experience the criminalization...