Here's a piece in the online journal Don't Do It about the law and s/m: Erotic Treason
I spent most of this week at Cove Park at a writing workshop with other students and graduates of the Birkbeck Creativing Writing MA Programme. Cove Park is on a dangle of land between Loch Long and Gare Loch, with views towards bleak hills. The light falls thickly through the clouds there, illuminating the leaden water in bright, unexpected, ways.
I slept in a "pod" - a converted container, which should have been heated. The view was spectacular. The only warm place, though, was the bathroom; and so I wrote in there - my back to the shower, with a view of the wall. Perhaps that was helpful.
We wrote for three hours a day, read each others' work for two hours, and then had a two hour workshop. Very intense.
The following was one of the pieces of work I did. We were given a choice of three short stories by Lydia Davis - an American author known for her (very) succinct, precise, narratives and asked to develop them. I chose "In a House Besieged" (a review of which can be found here, and here. I did not know the story before, and was unaware that it was complete (we were told simply to develop the story, and I assumed it was merely the first paragraph of something longer).
Our task was to be true to the style / tone. (The text we were given had the dialogue set out as follows - it is different in the original). Thank you Lydia! You inspired me.
Inspired By Lydia Davis …
“In a house, besieged, lived a man and a woman. From where they cowered in the kitchen, the man and woman heard small explosions.
“The wind“, said the woman.
“Hunters”, said the man.
“The rain”, said the woman.
“The army”, said the man.
The woman wanted to go home, but she was already home, there in the middle of the country in a house besieged.”
The man had not been her choice.
“If it is hunters we would hear shouting”, said the woman.
“If it is wind the windows would whistle”, said the man.
“If it is the army you would be fighting”, said the woman.
“If it is rain there would be clattering on the roof tiles”, said the man.
The table under which they cowered was low and narrow, and there was no space between them. The woman could smell the beer the man had drunk at dinner on his breath. His coarse jacket rubbed against her arms. There was egg in his beard. The candles had gone out and the only light was from an oil lamp on the dresser. Soon that would be gone too.
“We can’t stay under the table all night”, said the woman.
“I’m quite happy to”, said the man.
“I’ve things to do”, said the woman.
“Do them”, said the man.
The woman had not been his choice either. In their cramped position, one of her breasts was pushing hard against his ear. His only view was of the skirting boards, covered with fluff.
“How long have we been here now?”, said the woman.
“Hours”, said the man.
“How many?”, said the woman.
“No idea”, said the man.
The kitchen was almost perfectly square, with three doors. One led to the pantry, one to the hall, and one to the yard. The hall door was open. The woman could just make out the foot of the stairs. It was getting cold. She thought about her bed. About mattresses and blankets and counterpanes. At least she had her own room. They no longer made any pretence in that respect.
“What makes you think it’s hunters?”, said the woman.
“Gunshot”, said the man.
“How can it be both hunters and the army?”, said the woman.
“Why not?”, said the man.
The woman felt the man’s ear against her breast. It was a big ear, with wiry hair on the lobes. She thought about their child and how his mouth had felt on her teet. If he had lived perhaps he would have developed similar ears. It would have been a small price to pay.
“He would have been twelve”, she said.
“Don’t”, said the man.
“Why not?”, said the woman.
“There’s nothing to be gained”, said the man.
He focused on a particular patch of fluff, between the foot of the dresser and the pantry door. In the gold light of the gas lamp it shone like barbered hair. When he was a child, he’d had hair that colour, inherited from his mother. They had lived far from here. She was dead too.
“Look!”, said the woman.
“What?”, said the man.
“There!”, said the woman.
“Where?”, said the man.
The woman adjusted herself as much as she could so that the man could see. A mouse was nosing out of a hole in the skirting board, its whiskers whiffling.
“It will get the cheese”, said the woman.
“First it will have to climb”, said the man.
“I’ve seen mice climb”, said the woman.
“Let’s watch”, said the man.
The child had been born in winter and lived till spring. The woman was already old, and the child was weak. They gave him the man’s name, as was the custom. They buried him just beyond the yard wall, at the edge of the orchard. In the summer, the land around the grave was a riot of flowers: scarlet poppies and cornflower, daisies and purple clover. Over time it had become harder to tell where the field ended and the grave began.
“He’s checking us out”, said the woman.
“They’re wily”, said the man.
“If we stay still there’s more of a chance”, said the woman.
“Perhaps there's a family”, said the man.
When he was still young he’d joined the army. They all did. There was nothing else. He’d fought on the losing side. Afterwards he moved away. The woman had come with him. She had been sitting in the road by what remained of her house, a basket in her lap. She had lost her father and her mother, and two brothers. He had nodded, and she had followed.
“He’s all the way out now”, said the woman.
“Perhaps it’s a female”, said the man.
“Makes no difference”, said the woman.
“It makes all the difference”, said the man.
On the journey to the house they did not speak, and for weeks after they arrived they moved around each other, silently. He had never asked her name, nor she his. It was only when the child was born that this seemed important, and still he had not asked hers. He shifts his weight under the table and their cheeks touch. Against his own, her skin feels feather-soft.
“Excuse me”, said the man.
“Think nothing of it”, said the woman.
“Do you think of him often?”, said the man.
“Every day”, said the woman.
The ground had been so hard when he went to dig the grave that the rusting spade shattered with the first push. He had found a flint with a sharp edge, and on his knees, carved the land out, bit by bit. He had not seen her watching, but when he finished digging she came out from behind a tree, laid a hand on his head and rested it there.
“He’s at the table leg now. Shhh!”, said the woman.
“And now he’s climbing it”, said the man.
“Will you look at that!”, said the woman.
“Anything’s possible”, said the man.
The oil lamp was spluttering now. Strange shadows danced on the walls of the kitchen. The man saw soldiers, guns and cannons. The woman saw ghosts.
“Listen”, said the woman.
“I can’t hear anything”, said the man.
“The rain has stopped”, said the woman.
“The army has retreated”, said the man.
Above them the mouse rejects the cheese, choosing instead an apple from a tree that grows close by the child’s grave. It is an old tree, planted long before they came, its trunk scarred with ancient wounds.
Some Reflections on Norway’s Law Commission Report on Criminal Law and the Transmission of Disease (based on the English Summary – which can be found here: http://www.regjeringen.no/nb/dep/hod/dok/nouer/2012/nou-2012-17/18.html?id=705100)
The quotations are from the Report, the passages after each are initial observations.
“Many declarations and statements have a global objective and do not necessarily reflect the great cultural differences between regions and states. States have quite a free rein in terms of the importance they attach to «soft law» in their assessments of what is compatible with international human rights obligations. To a large extent, therefore, they will be able to take account of national factors, provided their interpretation is consistent with the convention texts with comments by the treaty bodies and ECHR jurisprudence.”
One might counter this by saying that the reason that such declarations and statements have a global objective is because they address global phenomena and are concerned with fundamental questions and universal values. It is arguably no answer to say that because there exist particular cultural practices or differences in a state or a region they should be respected, or are to be protected, on that basis alone. To observe or acknowledge such difference is not, nor can be, a sufficient justification for their continuation. In some areas (such as female genital mutilation), international law (of the “hard” kind) may be proscriptive, and the Report recognises that there is an obligation on the part of states to honour this; but it is a conservative, cautious and precautionary approach to resist or deny the applicability or value of “soft” law simply because failing to honour it has no formal consequences. Of course, there is a strong and pervasive claim throughout the Report that Norway is a fundamentally conservative and cautious society (viz, especially, the comments that “responsible” sexuality (rather than the “passionate” kind) is the ideal). To the extent that this is true (and / or is something of which Norway is proud and does not wish to change through progressive measures in line with international expert opinion), then the findings of the Report are, at least, internally consistent.
“Foreseeability is an important aspect, and precisely this aspect will be easier to safeguard by means of special provisions in the field than through general penal provisions that protect life and health. In a special provision, the further conditions for a criminal penalty, including the standard of guilt, the importance of consent, the penalty level, etc. can be regulated in a way that is especially adapted to this type of case. States must be given a margin of discretion in formulating their criminal law and individual penal provisions, in which the legal tradition and other factors in the country may also be of significance.”
The Report is right to assert that foreseeability is an important element of fair and just law. People need to know what the law is in order to be able to obey it, to know what their obligations are and so on. However, the Report appears to be suggesting that ensuring specificity in law is, in some sense, a justification for a particular law. That is not necessarily the case. First, not having a law (decriminalisation) is as clear – if not clearer – than having one. Second, if one is wedded to continued criminalisation of the transmission of serious disease then it is not necessarily the case that the use of general law is problematic or less foreseeable. It is suggested that special adaptation is possible where there is specificity in offence type (as far as matters of consent etc are concerned); and this may be true. But it is also the case that by establishing disease transmission as a special type of case there is the risk of affirming people who are living with a disease – and we can be under no doubt that despite it not mentioning HIV this will be THE disease – are under obligations different from, and greater than, the general population. All people, including PLHIV, may legitimately be punished for recklessly breaking their victim’s nose; but only PLHIV (or living with a transmissible disease) can be liable for this exceptional crime. Whatever the report asserts, the specificity of the provision, contrary to UNIADS guidance, makes HIV a special case and PLHIV an especially suspect community.
“There seems to be little evidence to support some of the theories regarding the impacts of criminal legislation on infection transmission and exposure on which the recommendations of UNAIDS are based. Furthermore, the points of view are formulated with a global objective. Some UNAIDS work in the field is particularly focused on high-income countries, but here too significant variations will be seen in the different countries in terms of legal traditions, the application of criminal law and the level of penalties, as well as cultural factors related to confidence in the legal system and a sense of responsibility in human interaction, etc.”
Three points here. First, it is true that there is relatively little evidence about the impact of criminalisation; but there is not no evidence. In particular, and importantly, just as there is relatively little evidence of its negative impact, so there is little or no evidence that criminalisation does any good. If, as seems to be the case, the Report does not propose decriminalisation in part because of the lack of evidence, it has reached that conclusion – to this extent at least – on the basis that evidence is important in criminalisation debates. However, this is inconsistent with the emphasis on values, culture and tradition as a justification for continued criminalisation. Second, UNAIDS focuses on high-income countries, because criminalisation is (largely) a high-income country pre-occupation. High-income countries can afford to, and do, criminalise because PLHIV are frequently from marginalised, poorer and otherwise excluded groups. Criminalising HIV in Norway (and Sweden, Denmark etc) is possible and tolerated because it doesn’t impact on the dominant, wealthy, majority as a group. Poorer countries, such as those in sub-Saharan Africa where HIV is endemic, may have criminal laws against HIV transmission and exposure but they enforce them less often (there are more pressing things to worry about), and – it should be emphasised – those laws are either the result of a rich country colonial heritage or exports (such as the N’Djamena Model Law). Third, the final phrase in this paragraph is rather offensive, to the extent it implies, even if inadvertently, that responsibility in intimate sexual relationships in high-income countries is greater.
“The ideology of gender equality plays a pivotal role in Norwegian society, and Norway is characterised by a relatively high tolerance for sexuality and sexual behaviours in population groups who have traditionally held subordinate positions. However, this does not mean that sexuality is not subject to restrictions and social and cultural constraints. A belief that culturally-determined aspects of human behaviour are in fact «natural» in a biological sense has implications for sub-groups of the population who, for various reasons, must or prefer to adopt a behaviour that differs from that of the heterosexual majority. Sexual standards are social constructs, and those who do not conform to these standards risk becoming social outcasts. If large sub-groups of the population were to break with existing norms and rules of society, the norms can be changed precisely because they are social constructs. In Norway, there is a relatively high degree of openness as regards sexuality, yet we nonetheless have a somewhat ambivalent relationship to sexuality. Intercourse that is legitimised by love and affection is regarded as an expression of «good sexuality», while sex solely for the sake of pleasure is not regarded very highly.”
Even if this is true, the emboldened text is an extraordinary statement. If “sub-groups” (Gay? PLHIV?) risk becoming “outcasts”, then this is because dominant social groups contruct them as such, not because there is anything immanently “outcast” about them. Was the Commission aware of the extensive literature on the social model of disability I wonder? There is, here, an extraordinary descriptive claim about the normal / heteronormative, as well as a claim about what “good” sexuality consists in and an apparent fear that those who practise bad or non-normative sexuality will in some sense “infect” the majority.
“All the Nordic countries are often seen as having relatively liberal attitudes towards sexuality. In this cultural context, it is the responsible, and not the passionate, sexuality that is socially accepted and idealised. A consequence of this is that unless pregnancy is planned and wanted, individuals are expected to conduct themselves like responsible citizens and use contraception during intercourse. The use of contraception is not socially stigmatised, and is considered to be a shared responsibility. For most young people, it is natural to see themselves and their partners as fertile individuals. For most heterosexual couples, therefore, it is natural to make contraception an integral part of their sexual behaviour. As far as protection against infection is concerned, the situation is considerably more complicated. People seldom base their behaviour on – or accept as natural – the assumption that they themselves or their partners may be carriers of sexually transmitted diseases. Basing their behaviour in a sexual context on such an assumption will in all likelihood be perceived by their partner as a sign of being unnaturally suspicious.”
It is difficult, without access to the full Report, to know whether the descriptive claim made in the second sentence here is based on the views of the Commission members (not, perhaps, representative of average Norwegians?), on evidence presented to them, or on scientific emprirical research. One would hope for the latter, given the extent to which the Report places emphasis on facts and evidence as the basis for justifying continued criminalisation; but one suspects not. Even if it is true (though grand generalising claims such as this are always problematic), it is important to recognise that law has a strong constitutive function of what is accepted and idealised in societies. Law does not simply reflect dominant views, or culture, or tradition; it refracts it, and it contributes to it. If contraception is not stigmatised in Norway it is, in part, because it is legal to obtain and use contraception. The decision of the Commission to recommend maintaining the criminalisation of non-intentional transmission and exposure is, now, part of – and a significant contributor to – the continuing history of exceptional treatment of PLHIV and others living with serious transmissible disease. It is somewhat naïve, as this statement suggests, to claim that the Report is merely reflecting what the views “out there” are; it is an important element in what will be “out there” from now on. If, as the statement continues, people do not assume that their partners are carriers of STIs, this is in part because the law entitles them so to assume. The 2008 FAFO study (http://www.fafo.no/pub/rapp/20086/20086.pdf) showed, among other things, that one-third of Norwegians would not let a PLHIV look after their child/children (p 40), and 13% thought you could catch HIV from sharing a glass (p 29). When there is such ignorance and ill-informed discrimination about HIV in the general population, it is perhaps little wonder that the attitudes described here prevail. The Commission could, with some imagination, have contributed to affirming the importance and value of shared responsibility in sexual relationships generally on the basis that sexual infections are a normal (if undesirable) part of being human. But it didn’t; and that’s a lost opportunity.
“Being in a steady relationship is one reason for assessing as low the risk of being infected with a sexually transmitted disease. Being in a committed relationship generates a sense of security, and this security is linked to having faith in and trusting one’s partner. As a result, people who are in committed relationships test themselves less often for HIV and chlamydia. In our Nordic culture, the responsible, and not the passionate, form of sexuality is the ideal.  In the course of many years of family planning work, for instance, we have developed a rational, systematic way of dealing with our sexuality. In this cultural setting, it is considered legitimate to impose a responsibility on sexual actors for their actions, and we accept this responsibility. In a culture of passion, this is meaningless.  In our Norwegian and Nordic culture, it is accepted that persons who are HIVpositive have sex, but have (a special) responsibility not to infect other persons. Because we accept this premise, a law will also be accepted and an effort will be made to comply with that law by individuals from our culture who could transmit infection. The situation may differ somewhat in the case of infectious persons from other cultures.” (My enumeration and emphasis)
With respect to the first emboldened statement I would ask “Who, in Norway, is economically, socially and otherwise treated as responsible for the conception of a child (and any child that is born as the result of conception) (a) when contraception is not used and (b) if a woman lies about being on the pill to the man who is the biological father?”. Would the woman, in the second example, be WHOLLY responsible for the child because she lied or withheld the truth? With respect to the second emboldened statement I find myself almost speechless. It may be that the Commission wants to acknowledge cultural difference; but this is a very infelicitous way of doing so. How long, one wants to ask, must a non-Norwegian live in Norway before an assumption is made that s/he or he will respect the law of the country in which s/he has come to live? Or are they to be characterised as in some sense savage and uncivilised merely by virtue of their origin?
“The Commission is of the opinion that the Communicable Disease Control Act and the Public Health Act are key to safeguarding public health, supplemented by the non-judicial instruments that are also of pivotal importance. These instruments are of far greater importance than penal provisions for protecting the population against serious communicable diseases. However, Norway and several other countries have a tradition whereby infection transmission and exposure can be prosecuted, on the basis of penal provisions in the general criminal legislation which are intended to protect both public health and individuals.”
It is welcome that the Commission recognises the importance of non-criminal legislation in safeguarding public health. There is, however, a problem with the mixed messages this send out. On the one hand the state is articulating, properly, an approach to health and wellbeing that uses facilitative and empowering mechanisms (for the good people) and criminal law (for the bad). Where those who are defined as bad include (as is recommended by in the Report) those who merely expose others to the risk of transmission and those who fail to establish consent in front of a medical professional – see below – the line between public health logic and criminal justice logic is unhelpfully blurred. Criminal law, as the last resort, to be deployed only in the most egregious cases is – in Norway presently, and under the proposals – seen as appropriate in a far wider range than expert opinion and international guidance recommends. The Commission is, I would argue, explicit about this blurring when it suggests that exposure liability “will” change behaviour. Criminal law is appropriately used, in limited circumstances, to censure wrongdoing after the event. There is no evidence that it modifies behaviour. The same is not the case for public health measures, whether or not supported and affirmed through legal provisions, that incentivise health-seeking behaviour.
“… the Commission’s majority – 11 out of 12 members – are of the opinion that the circumstances in a number of cases, including many of the cases adjudicated under section 155 of the 1902 Penal Code, are such that the infected party has acted in such a blameworthy manner as to make a criminal sanction both right and reasonable. This is particularly the case where the infected person has deliberately given erroneous or misleading information about his or her infection status, perhaps over a long period of time, thereby giving the other party no incentive to ensure protection against infection. This increases the subjective blameworthiness of the infected person, and thus the justification for punishment.”
If this is the Commission’s view, then one wonders why it has not recommended an offence of failing to disclose information, or lying when asked. The Report stresses elsewhere the importance of clarity, certainty and foreseeability in the law, and if it felt that criminalisation was especially justified in the kinds of cases it sets out here it had the opportunity to draft an offence that captured clearly this kind of wrongdoing.
“Of the majority’s 11 (out of 12) members, nine members emphasise that decriminalisation could be perceived as an indication that infecting other persons or exposing other persons to the risk of infection is no longer such a serious act. The growing number of persons recently infected with HIV could suggest that there is a view prevailing in certain circles that it is no longer as important to avoid HIV infection because medication can prevent HIV-positive persons from developing AIDS. The Commission’s majority finds that it would be ill-advised to reinforce this impression by completely decriminalising such acts or repealing the special penal provisions that govern the transmission of infection and exposure of another person to the risk of infection.”
Repealing prohibition laws criminalising the sale and enjoyment of alcohol did not, arguably, send out the message that people should act irresponsibly and get intoxicated at every opportunity. Rather, the repeal of these laws recognised that they were a coercive infringement on the right of people to enjoy alcohol responsibly. Decriminalising abortion reflects the rights of women as regards their reproductive autonomy – it does not send out the message that decisions about termination are something to be taken lightly. There is no evidence I know of that would suggest that decriminalising non-intentional HIV transmission and exposure would result in a massive increase in “irresponsibility” on the part of PLHIV. We do know, from extensive research, that HIV epidemics are driven primarily by the undiagnosed and untreated, not by those whom the law “catches”. Decriminalising would therefore have only a marginal impact on rates of new infections, and the implication in this paragraph 9which seems to be based on conjecture and moralism) does a disservice to the vast majority of highly responsible PLHIV.
“… The greater foreseeability that can be created by establishing a special penal provision is assumed to be very important to those concerned. A separate penal provision which clearly defines the circumstances that exempt the perpetrator from a criminal penalty will make it easier to foresee consequences, thereby making the state of the law easier to understand.”
“… In the Commission’s view, it could in theory be difficult to convict persons who have infected other persons or exposed other persons to the risk of infection, even in cases where the person concerned has behaved in a blameworthy, extremely indifferent or reckless manner. The standard of guilt under the ordinary provisions governing bodily harm is intent. A great deal of evidence will be required to prove subjective guilt in the form of intent to transmit infection, which would be a requirement for conviction whether the case involves the actual transmission of infection or the exposure of another person to the risk of infection.”
People do indeed need to know precisely where they stand, and a specific provision may assist in this. But the Commission is – by implication – saying that a special provision makes prosecuting easier, because using the general criminal law (with its pesky burden of proof, high standard of fault etc) makes criminalising hard. It should be hard – very hard.
"Of the Commission’s majority of 11 out of 12 members who consider that a separate penal provision relating to the transmission of infection should be maintained, a majority of nine members find that improperly exposing other persons to the risk of infection should be punishable even if no disease or harm has been inflicted on the aggrieved person. This should also be possible in cases other than those in which purposeful intent to transmit infection has been shown. The risk of infection and transmission of infection arise from the same type of acts. Only by ensuring that the penal provision also covers exposure of another person to the risk of infection will it promote a change in behaviour and thereby contribute to infection control. Whether the individual act that causes a risk of infection will lead to the other party being infected cannot be foreseen, even if the parties may to some extent know of factors of significance for the magnitude of the risk of infection.”
Apart from the jurisprudential arguments that this offends against principles of minimum criminalisation, this appears to be somewhat hypocritical when one considers reasoning elsewhere in the Report. Specifically, the Commission makes the point in a number of places that there is "little evidence" to support claims made (by UNAIDS and others) about the impact of criminalisation on transmission and exposure. Yes - if one's definition of evidence is quantitative science, longitudinal surveys etc. We still don't have enough evidence, and getting it (through funded research) would be very good and very helpful. However, to make that point as a justification for not decriminalising anything other than intentional transmission is a little bit rich when one focuses one focuses on the emboldened text is a claim, by the Commission, based not on evidence but on speculation. With the greatest respect, and irrespective of one’s views on this topic, you can’t have your cake and eat it. To refuse to countenance decriminalisation on the basis of a lack of empirical evidence of criminal law’s harmful impact, and (almost in the same breath) to justify continued criminalisation of the least justifiable form on the basis that it “will” (not may, or might) “promote a change in behaviour” when that is not grounded in anything other than surmise is lazy and logically unsustainable.
“The draft contains a provision to the effect that consent exempts a person from liability to a criminal penalty in the case of infection transmitted by sexual activity. In order for consent to have an exempting effect, such consent must be given in the presence of health care personnel in connection with infection control counselling. These formal requirements are intended to ensure that the consent given is informed and well-considered, and that the relevant facts relating to the granting of consent are established and that the consent is given after proper infection control counselling. There is no requirement of a special connection between the parties, as is the case under the provision adopted in the 2005 Penal Code.”
Many commentators were critical of the existing approach – which permitted consent to risk / transmission as a defence only in the context of spousal relationships. The Commission proposes dropping this – which is welcome – but in its place has recommended that consent be a defence where it is witnessed by a health care professional in the context of infection counselling. Honestly – this is like something out of Alice in Wonderland. It appears to be aimed at the sero-discordant couple (X and Y) where there has already been disclosure by X of her / his HIV positive status to Y (who is negative) and where – up to knocking on the doctor’s door – they have either had no sex, or protected sex, and want to have unprotected sex. So X has to ask Y to come to the clinic, where Y gets a good old lecture from a professional about the effects and consequences of HIV infection – no doubt in front of X (this is all very romantic and intimate, as you can see) – and Y persists (why on EARTH would s/he?) in saying that unprotected sex is that s/he wants and that she consents (sign on the dotted line) to that risk. Forget, for the moment, the possibility that X may have more than one partner concurrently (and may therefore need more than one visit – just imagine how that will go down), or that this in effect HIV-specific despite the generality of the proposed law (can you imagine X having this discussion or encouraging a partner if he were diagnosed with Chlamydia or gonorrhoea to come along for the consent chat?), this is the bureaucratic disciplinary state run wild. It’s almost beyond comment, it’s so ridiculous. Until, that is, we read that “In our Nordic culture, the responsible, and not the passionate, form of sexuality is the ideal”. You can’t get more responsible than going to the surgery before you are allowed to have sex of a kind you want with an informed partner without the risk of criminal charges.
The arrest in Athens of 17 female sex workers living with HIV this week is outrageous on many levels. It is not that a significant number of them have had their right to respect for private life violated (12 had their photographs published on a police website), nor that there is uncertainty as to whether the women concerned knew their HIV status, nor that the women were arrested after a screening process by the Greek Centre for Disease Control (how voluntary was that, I wonder?), nor that they have been charged with intentionally causing grievous bodily harm (a charge almost
impossible to prove, and on the facts arising simply from having unprotected sex with clients – according to news reports it is unclear whether any clients have actually been infected as a result of sex with the women concerned). All these things are bad enough, but what is really appalling is the way in which it is the women who have been identified as the legitimate locus of control and the subject of punitive state response.
It is appalling, but it is entirely to be expected. There is a long and ignoble tradition of locating the source of STIs in women in general, and female sex workers in particular. In the context of HIV criminalization this tradition has reached a new peak (or, perhaps better, a new trough). Put simply, HIV criminalization has compounded, and added a new and frightening dimension to, the longstanding idea that female sex workers are a source of pollution threatening the cleanliness of men. It is not just that by identifying them as the risk and the cause of any harm men may suffer, the men concerned (and men in general) are able to divert attention from their own responsibility (though this is important), it is that criminalization has provided an opportunity, in this context, to reinforce the idea that women are inherently dirty, that HIV is dirty, and that cleansing (what a frightening word that is) through punishment, containment and deportation (the women in Athens were foreign nationals) is a reasonable and justifiable response.
Of this logic we should be very afraid. The elimination of dirt at a political level has found expression, at its most extreme, in the slaughter of the Jews by the Nazis, in the apartheid regime of South Africa, in eugenic science and rules relating to miscegenation. It is evident in any attempt by a society to maintain its ‘purity’ by imposing border controls that require would-be immigrants to undergo tests that filter out the sick and unhealthy.
At an individual level, the elimination or exclusion of dirt – or rather the practices, attitudes and response mechanisms that attempt to achieve this (prosecution, imprisonment, deportation) mirror a wider political project in which the HIV positive body is punished, marginalised and devalued because it represents everything that is feared in post-modernity. , The HIV positive body is a paradigm site for repressive legal and political response because of its capacity to reproduce itself in the body of those for whom it represents a threat to physical and ontological security, and because that reproduction occurs – and can only occur – through the merging of bodies via the co-mingling of their ‘inside’. Elizabeth Grosz, an Australian feminist theorist has put this better than anyone else when she explains that:
“Body fluids attest to the permeability of the body, its necessary dependence on an outside, its liability to collapse into this outside (this is what death implies), to the perilous divisions between the body’s inside and its outside. They affront a subject’s aspiration toward autonomy and self-identity. They attest to a certain irreducible ‘dirt’ or ‘disgust’, a horror of the unknown or the unspecifiable that permeates, lingers, and at times leaks out of the body, a testimony to the fraudulence or impossibility of the ‘clean’ and ‘proper’." (Grosz, 1994: 193-4)
For Grosz, it is women’s bodies, their unstable and destabilizing corporeality, that serve both to affirm men’s belief in their own inviolability and, thus, the bounded body (i.e. male bodies) as the normal, universal and legitimate form of subjectivity. The seminal flows that emit from male bodies, reduced to a by-product of sexual pleasure rather than conceived as a manifestation of immanent materiality, and as something that is directed, linear and non-reciprocal, enables men to sustain the fantasy of the closed body and of the possibility of control over it. The socio-cultural and psychological dimension of Mackinnon’s (in)famous assertion about the power necessarily instantiated in heterosexual relations (‘Man fucks woman: subject verb object’ (Mackinnon, 1982: 541), this fantasy is a prerequisite for the maintenance of masculinity, and of the mastery – over women, over nature – that masculinity enables, or which is its prerogative.
To receive flow, or to be in position where there is a risk of flow in the other direction, is to be identified with the feminine (whether as woman, or as passive homosexual) and to lose the phallic advantage; to acknowledge the essential materiality of the body, that its flows are not merely by-products of the body but constitutive of it, is an admission that strikes at the heart of masculinity, at the security which is its privilege, and at the legitimacy of the hierarchised and gendered socio-economic order upon which its privileged status depends. Understood in these terms, it is unsurprising that it is women’s bodies (despite the relatively low risk of female to male sexual transmission) that are – within the discourse that frames the heterosexual HIV epidemic– characterised as the source of infection. As Grosz explains, this discourse is one that makes
“… women, in line with the conventions and practices associated with contraceptive procedures, the guardians of the sexual fluids of both men and women. Men seem to refuse to believe that their body fluids are the ‘contaminants’. It must be women who are the contaminants. Yet, paradoxically, the distinction between a ‘clean’ woman and an ‘unclean’ one does not come from any presumption about the inherent polluting properties of the self-enclosure of female sexuality, as one might presume, but is a function of the quantity, and to a lesser extent the quality, of the men she has already been with. So she is in fact regarded as a kind of sponge or conduit of other men’s ‘dirt’.” (Grosz, 1994: 197)
Given Grosz’s analysis it is hardly unsurprising that the Centre for Disease Control in Greece had 1500 calls from concerned men once the story about the brothels broke. Far from accepting any responsibility they might have for having sex which carried the risk of STI and HIV infection, it was entirely to be expected that their concern was whether the women might have infected them, and that the legal response was to round up the women. Patriarchy is, after all, a Greek word.
The response of the Greek health Minister, Andreas Leverdos, prompted in part by a massive rise in HIV infections in Greece in recent months (954 new infections were reported in 2011, a 57 percent increase from the previous year), and also – surely – by the political value in deporting non-nationals at a time when Greece is in economic meltdown, was to suggest criminalizing unprotected sex in brothels. He is reported as saying, “Let’s make this a crime. It’s not all the fault of the illegally procured woman, it’s 50 percent her fault and 50 percent that of the client, perhaps more because he is paying the money”. On the face of it this response suggests some recognition of shared responsibility. However, it is a pipe-dream – I suggest – to imagine that doing this (even if it were politically viable, which I doubt) would have the effect of eradicating the deeply entrenched view that female sex workers are to blame for their clients ills; nor is criminalization of sexual behaviour that carries the risk of HIV infection a productive or constructive answer to anything. It would simply perpetuate the idea that punitive laws are an appropriate response to what is properly understood as a public health issue that should be addressed through wider awareness, education and an affirmation of the importance of taking care of, and respecting, ourselves and others.
I wrote a piece for newsmill.se (availabel in Swedish at http://www.newsmill.se/artikel/2012/04/16/r-dsla-f-r-det-orena-bakom-sveriges-h-rda-hiv-lagar). The English orignal is as follows (Swedish edited version may be slightly different).
There is a horror film from 1992 called “The Hand that Rocks the Cradle”. The plot centres on the efforts of a vengeful nanny to destroy the life a woman who the nanny blames for her own husband’s suicide and the miscarriage she subsequently suffers. The title is a good one for the film because it suggests security and safety when the opposite is in fact the case. There is nothing more disturbing than discovering that the person in whom you have put your trust is in fact the source of danger and harm to the thing you hold most dear.
Sweden has rocked its children in a cradle handed down through the generations for over a century, carved from the warm, soft wood of social democracy. And, for most of the children, the cradle is a very safe place. Indeed, many have fallen asleep as she rocks them and find the constant motion so comforting that there is little desire to wake up (which suits nanny just fine). For some other children though, the story is very different. Beware those who refuse to believe all of the stories nanny tells them, or the children behaving in such a way that she thinks will set a bad example. It’s not that she wants to be cruel, but she knows what’s in their best interests. She has little, if any, tolerance for those who jeopardise all the work she has done in raising the good, obedient, children, and she will take almost any action necessary to show the bad ones the error of their ways and bring them into line. Tough love: that’s nanny’s motto.
Some readers may find this extended metaphor shocking. It is meant to be. I, like many of my contemporaries in countries with less welfare-oriented, and stronger liberal-conservative, political traditions have always thought of Sweden and its neighbours as some kind of Nirvana – a promised land in which no-one will ever be too rich, and no-one too poor; where the contract between state and citizen assures security and support for all, irrespective of the personal misfortunes and disadvantages people may experience.
My recent research into Sweden’s response to people living with HIV has demonstrated how this image – accurate in many respects – is only part of the story. Not only has Sweden detained more than 100 people under its communicable disease legislation since the epidemic began (and been held, in one case, to have violated the European Convention on Human Rights as a result), it criminalizes more people per ‘000 living with HIV (PLHIV) than any other country in Europe. It criminalizes them not only for deliberate transmission, but for non-deliberate transmission and for exposure (where HIV is not in fact transmitted). It criminalizes only those who know their HIV status, despite the fact that the source of most new infections is people who are undiagnosed, and ignores the fact that PLHIV on effective treatment and with an undetectable viral load present practically no risk of onward transmission to a partner during sex. It criminalizes these people despite the fact that HIV is a public health issue, despite the fact that there exists no evidence that criminalization has any public health benefits, and despite the fact that the sensationalist headlines which accompany stories about HIV cases contribute to and reinforce the stigmatization of all PLHIV.
Why does Sweden do this, contrary to the policy guidance issued by the UN’s Joint Programme on HIV and AIDS (UNAIDS)?
It is my strong belief is that Sweden’s coercive and punitive response to HIV has its source precisely – and paradoxically – in values have become so embedded in the psyche of the general population over the past century that anything, or anyone, that threatens them is treated as a dangerous contaminant to be dealt with accordingly. Just as with its approach to sex work (even this term is disliked), which treats all workers as victims and all men as deviant criminals, and drug use (where harm reduction – despite its efficacy – is distrusted because it suggests tolerance of something essentially dirty and dangerous), HIV is criminalised because it threatens, at a very fundamental level, what being Swedish means. HIV is not clean. HIV is not healthy. HIV is not normal. For as long as HIV can be contained among men who have sex with men, drug users and migrants – and (critically) be seen to be contained there by everyone who is not a member of these groups – the Swedish self-image of a country committed to enlightened, progressive values can be sustained. And because this is so important, any measures - however repressive, illogical or misguided – are acceptable.
Since March 2012, Sweden has a new Ambassador to the Kingdom of Swaziland, Ulla Andrén. On presenting her letters of credence to the King, Ambassador Andrén emphasised “the importance of a continued effort to work against the HIV/AIDS pandemic” in that country. Swaziland has the highest HIV prevalence in the world, with more than one in four people living with virus (some 200,000 people). Given the passionate commitment it has demonstrated to punishing PLHIV domestically, and its belief in the value of a punitive response, it would seem only sensible that Sweden should suggest that Swaziland adopts its. Except of course it shouldn’t do this, and nor would it. But it’s a serious point though. If it would be wrong to recommend the criminalization of HIV in Swaziland, where HIV remains, for many, a dangerous and deadly disease, then why is it OK to criminalize it at home, where people who are diagnosed can lead long and otherwise healthy lives?
We all understand why the children like sleeping in nanny Sweden’s cradle. But it might be interesting, and liberating, for them to wake up and test her patience a little …
Here is a lecture I gave on April 16th 2012 to people involved in implementing Norway's HIV strategy 2009-14.
I did a couple of interviews in Stockholm on the topic of HIV criminalisation. Here are the links:
http://www.dagensjuridik.se/2012/04/brittisk-juridikprofessor-till-hart-angrepp-mot-sveriges-hiv-lagstiftning (this is an online journal for practising lawyers in Sweden)
There is a Google translation of this here: Download “British law professor to hard attack on the Swedish HIV-law _ Daily Law”
http://www.ottar.se/artiklar/sverige-straffar-h-rdast-f-r-hiv-i-v-rlden (this was for the Swedish Association for Sexual and Health's magazine)
There is a Google translate version of this here: Download Sweden punished most severely for HIV
It's not often that you get to feel that academic research and scholarship is really worthwhile, but sometimes things just click.
I wasproud to have been one of twenty academics, activists and civil society representatives from across the world who met in Oslo last week to finalise and launch of The Oslo Declaration. The Declaration calls on governments to decriminalise non-deliberate HIV transmission, exposure and non-disclosure. It draws attention to the fact that the criminalisation of HIV, far from having the beneficial public health effects its advocates claim, has the opposite effect of reinforcing HIV-related stigma and hindering HIV prevention efforts.
I have been researching this area for more than ten years now, and this Declaration is the most succinct and powerful statement yet about the need for, and importance of, decriminalisation. It represents the views of people who recognise - and do not deny - the ethical and moral complexity of the topic, but who agree that the negative impact of criminalisation on public health is so substantial that it must be challenged.
After the meeting, I participated in a high-level conference convened by the Government of Norway and UNAIDS. The conference, which was opened by Michel Sidibé, Executive Director of UNAIDS, explored similar issues, focusing in particular on the relationship between scientific understanding of HIV risk and the impact of effective treatment and the use of criminal law. There was a real energy in the room, and I sensed a strong commitment on the part of participants for change.
After the meeting, I participated in a high-level conference convened by the Government of Norway and UNAIDS. The conference, which was opened by Michel Sidibé, Executive Director of UNAIDS, explored similar issues, focusing in particular on the relationship between scientific understanding of HIV risk and the impact of effective treatment and the use of criminal law. There was a real energy in the room, and I sensed a strong commitment on the part of participants for change.
I am undertaking a research project in March / April 2012 into the efforts of HIV activists and organisations in Scandinavian and Nordic countries to reform laws which criminalize HIV transmission, exposure and non-disclosure. The details of the project can be found below. I would be grateful for assistance from anyone in Denmark, Sweden, Finland and Norway who has been involved in this work!
Dear Friends and Colleagues
I am writing to ask for your participation in a research project looking at the ways in which activists and civil society organisations in Scandinavian and Nordic countries have responded to the criminalization of HIV transmission and exposure.
Across Europe, people living with HIV are being investigated, prosecuted, convicted and imprisoned for non-deliberate HIV exposure and transmission, and for non-disclosure of status, contrary to the best practice guidance of UNAIDS and other international organizations concerned with preventing the spread of HIV and promoting the health and human rights of PLHIV. The criminalization of PLHIV is impeding efforts to normalize HIV and reduce stigma, and undermines the importance of shared responsibility for sexual health. It is an epidemic whose impact is felt especially by people who already experience particular social and economic exclusion and vulnerability. It is an epidemic that, in theory at least, has created some 2.2 million potential criminals in Western and Central Europe.
Although all but a few countries in the region have laws which criminalize HIV transmission and exposure, the scale and intensity of their enforcement is not evenly distributed. Based on available data relating to HIV prevalence and convictions per 1000 PLHIV, there is a marked difference between Scandinavian and Nordic countries (Denmark, Finland, Norway and Sweden) and those further south. The former, despite having significantly lower HIV prevalence than the European average, have a markedly higher rate of criminalization. Sweden and Denmark, for example, have conviction rates of 6.12 and 4.66 per 1000, while the rates for France and Italy are 0.1 and 0.74 respectively.
There is a number of possible explanations for this increased resort to criminal law in the Scandinavian and Nordic countries compared with elsewhere, but whatever the causes are, it has resulted in concern among HIV activists and civil society organisations in the region, who have mobilised in efforts to repeal and reform laws and / or constrain their enforcement.
The Research Project
This research project is concerned with the work of HIV activists and organisations, and specifically with understanding:
(1) what their motivations for legal reform have been;
(2) how they have organised nationally and regionally to try and achieve that reform;
(3) how they have developed, and the considerations and evidence that have informed, their policy agendas;
(4) whether, and if so how, they have engaged and communicated with both (a) PLHIV and key groups especially vulnerable to HIV infection and (b) the wider population to achieve “buy in” and broader legitimacy for reform efforts;
(5) how they have engaged with policy makers, politicians, and government; and
(6) what the results and consequences of these efforts have been to date, and what they anticipate for the future.
These questions all focus on an attempt to understand better the ways in which civil society responds to the impact of law on PLHIV. By focusing on a region in which punitive law has been deployed disproportionately, and where there established and comparatively well-resourced organisations, the research will contribute to our understanding of how expert groups committed to HIV prevention and human rights protection mobilise in the face of what they perceive as a threat to the constituents whose interests they represent. In so doing, the research will provide original data about the dynamics of health activism and the impact of activism on law and policy. Two further aims are to provide a practical resource of value to HIV activists and organisations elsewhere in Europe and a record that will contribute to the oral history of the HIV epidemic in Europe.
How you can help!
I am interested in interviewing you if you have been concerned in any capacity with the HIV criminalization debates in your country, whether as an individual, as part of a community group or more formal organisation, or as a politician. I am interested in all perspectives! I will, of course, respect confidentiality if that is requested. I will have to conduct the interviews in English – so some level of competence in spoken English, or being able to come along with someone who may be able to assist in translating, will be necessary!
I will be visiting your country on the following dates in 2012.
Denmark (Copenhagen) 12th March – 18th March
Norway (Oslo) 18th March – 23rd March
Finland (Helsinki) 23rd March – 30th March
Sweden (Stockholm) 30th March – 5th April
If you are willing and able to participate, I would be grateful if you could contact me as soon as possible to arrange a time and a place for meeting. Once you have got in touch I can send more details.
I can be contacted at email@example.com
With thanks in advance for your help.
All best wishes
About Matthew …
Dr Matthew Weait is Professor of Law and Policy in the School of Law and Pro-Vice-Master for Academic Partnerships at Birkbeck College, University of London. Matthew studied law and criminology at the University of Cambridge and undertook his doctoral research at the Centre for Socio-Legal Studies, University of Oxford. For the past decade or so, Matthew's research has c entred on the impact of law on people living with HIV and AIDS. In addition to his scholarship in this area he is actively involved in policy and law reform. He has been a member of the UK Department of Health's Expert Advisory Group on AIDS and a consultant for the World Health Organisation and the Joint UN Programme on HIV and AIDS (UNAIDS). In 2010 he was appointed a member of the Advisory Group for the Global Commission on HIV and Law. In the School of Law at Birkbeck, Matthew was Assistant Dean between 2008 and 2011 and established, in collaboration with Hanne & Co Solicitors and River House a free legal advice and assistance clinic for PLHIV in London.
You can find out more about Matthew’s work at:
and you can follow him on Twitter: @ProfWetpaint
A few years ago I had dinner at my old College, Gonville and Caius, at Cambridge University. After dinner about six people stayed on for dessert, which took place in the Panelled Room. The SCR at Caius is a beautiful place, especially when lit by candlelight (there's a picture of the the Fellows by Paul Gopal Choudhury here which gives an idea of what it's like in the evening). Presiding at dinner was the late W.J. (Iain) Macpherson - a wonderfully wry economist and then President of the College. Also there was John Casey and Stephen Hawking, along with one of the graduate students who assisted him when he came into dinner.
At dessert, the conversation turned to the popularity of the Flat Earth Society in the 19th century, and why this might be so given that science had long-established that the earth was a sphere. Iain turned to Stephen and asked, "So, Professor Hawking, since we have you here, perhaps you could let us know what your views on the notion of a flat earth are?" (you have to imagine this being asked in a broad Inverness accent).
Because it takes time for Stephen to enter the answer into the computerised voice machine he uses to communicate, the convention is to continue with the conversation until he indicates that he is ready to respond, at which point the question was asked again: "So what are your views on the idea of a flat earth?" There was a very short pause, and Stephen uttered a reply I shall never forget:
"It would make using a wheelchair a lot easier".
Here's to Stephen - brilliant at everything, including bringing the house down.