When I was invited to give this lecture I was excited, enthusiastic and flattered. What a wonderful opportunity to talk to an engaged, inquisitive, and open-minded audience of people who share each other’s interests, respect each other’s values, and who are receptive to new ideas and ways of thinking. The title I came up with was therefore an attempt both to reflect the thematic focus and emphasis of the conference and also the ebullient diversity of the contributors and participants. What could go wrong? What was there to worry about? I would get up, say my piece, answer some questions, and sit down again.
If I am honest though, and there’s no point in being otherwise, my initial enthusiasm and excitement gradually gave way to horror, fear and foreboding. There were a number of reasons for this. First, I saw the abstracts – and I realised that any one of the presenters here today and tomorrow would be equally competent at doing what I’m about to do. Second, I went back to the title I had come up with and which was now printed, circulated and impossible to go back on. Sure, it was (and perhaps still is) a good title, but the more I looked at it, the more opaque and incomprehensible it became. What exactly did I mean? What exactly had I been thinking when I came up with it? What was I hoping to achieve by talking about these ideas in this way, with this emphasis? Third, and finally, how could I say anything of general interest to such a diverse audience in a lecture that would not give the impression of seeking to be anything other than authoritative – or of knowing more than those to whom I would be speaking – or of being somehow wiser? (None of which I claim to be, and none of which is – in and of itself – sufficient justification for being given this space, this time and this status.) How could I stand here and speak while you are obliged to be silent and not perform, reproduce and ultimately validate the very relationship of authority that most – if not all – of us spend our time, in various ways, attempting to dismantle, challenge and problematize?
There is a number of responses to these questions, I suppose. One is to stop being so paranoid – it’s only a lecture. And the very point of a lecture is that one person speaks and others listen. Another is to stop being so self-important – you’re not here because you are assumed to be more knowledgeable, or wiser, or more competent: you’re here because you were asked, were available and said yes. Yet another – and I think this is the most useful and productive way of thinking about how to address these questions – is to recognise that they offer a way into thinking about the issues involved in being an academic who is committed both to research, scholarship and pedagogy and to activism; because the point is that as academics – a status which all of us here share – we are necessarily institutionalised, and, because institutions and institutional relationships depend for their functioning on hierarchies, we have to confront the ways in which those hierarchies and the authoritative relationships which they comprise impact both on our scholarship and our activist engagement.
Let me reiterate, and expand a little on that, because it is central to what I want to explore here. We are here because we share an intellectual curiosity, both generally and – in particular – about law, gender and sexuality. More than that, though, we are interested in exploring this subject area in university settings and – mostly – in establishing and our expertise (and demonstrating or proving it to others) through the gaining of graduate research degrees. Whatever our politics may be, however radical we are, however much we are committed to critique, we are doing that (and have consented through participation to doing that) at least partly from within institutional settings that depend for their efficiency and credibility on maintaining relationships of authority, of differentiated hierarchically organised statuses.
This is so pervasive that it’s sometimes difficult to see; and even if we do see it, it is perhaps something we choose, or need, to ignore. Consider, for example, the graduate student – she is someone who is supervised in her research. Her supervisors / advisers may be the most enlightened people in the world, but they are the ones who expect deadlines to be met, who suggest (more or less categorically) changes in emphasis, in what needs to be addressed, in how the research should be structured. And when the thesis is submitted, it is examined by people who may be known, who may be strangers, but whose expertise gives them authority to judge (in this case to pass, to refer, or to fail). This is no different, in essence, when you are in a paid academic position. At this stage you have more freedom, to choose the approach you adopt to your work, to develop and express an individual style of writing that people come to associate with your scholarship (I’m thinking here, for example, of Patricia Williams, Catharine Mackinnon and Robin West); but still, unless you are specifically invited to contribute an article or chapter, you are at the mercy of the peer reviewers, and of research excellence audits, or house editors and style guides. More generally, unless you are particularly brilliant or confident (such as Williams et al), there is still substantial pressure – especially, I think, in law – to deploy the supposedly impartial language of academic scholarship on the basis (a) that this is able to express an objective truth; and / or (b) that this is what will count when it comes to external reviews of the quality of a law School’s output. And even if and when we resist this (which many of us do, or try to do), that luxury is generally open to those who either do not care if they get a job, or who already have one. Unless one is extremely lucky, and is being interviewed by sympathetic colleagues in one of the relatively rare law schools that positively favours a critical approach to legal scholarship, and / or is receptive to the particular interests of gender and sexuality scholars, it is brave to emphasise the radical, politically-inspired, change-oriented and policy aspects of your work over and above its contribution to legal scholarship. And it would be a brave or foolhardy job interviewee who went so far as to suggest (even if this what they thought) that there was no point in aspiring to write 7000 word peer-reviewed articles in traditional law journals because these outputs are self-referential, speak only to other authors of similar articles, and cannot adequately capture the passion that inspires her work in the first place.
The point I want to make, I suppose, is that working in this field, in this economic and political climate, poses for emerging scholars committed to change, to rights, to equality, to diversity and to change (especially those who want an academic career) the difficult questions implied in the title of my lecture: how do we make a difference, and sustain difference? How do we retain our identity and integrity within institutionalised scholarship where credibility depends on both being true and authentic, and also playing a certain kind of game? Is academic identity in this sense, perhaps, a form of “drag”? Something which we enact, over and over, a performance? And what compromises – if any – does that performance demand?
Those are the questions, by way of introduction, that I want you to think about during the main part of this talk – which is to discuss the relationship between legal research and scholarship and what – for the sake of simplicity – I will refer to as activism.
Using my own research into the criminalization of HIV transmission, and what I think of as my activist involvement with this topic, I want to make some general points about the nature of that relationship, the challenges it poses, and the opportunities it offers. Although my experience is unique, my hope is that it chimes, or resonates, with the experience of some of you – irrespective of your disciplinary expertise or area of special interest in the law – and that it provokes discussion.
There are two parts to what follows.
First, I want to give three brief, differently focused, accounts of the criminalization of HIV transmission in this jurisdiction – and by criminalization, I mean the way in which, in the last decade or so, HIV transmission has come to be something capable of prosecution and in fact prosecuted. These I have characterised as the legal, policy and activist accounts in a rough attempt to identify different ways in which the same process may be understood and analysed. They also serve to provide some background to those unfamiliar with the topic.
Second, I will offer some personal reflections about my role as an academic involved in this process as a way of illustrating some of the challenges and opportunities I mentioned earlier and make some more general observations about the scholar-activist identity, drawing on some of the literature on that subject.
Account One – Law:
In 1998 the House of Lords held for the first time in R v Ireland; R v Burstow that the offence of maliciously inflicting grievous bodily harm contrary to section 20 of the OAPA 1861 could be committed without proof that there had been the direct or indirect application of force on the body of the victim. The case was Ireland, and the decision was based on the psychological harm caused to the victim of abusive telephone calls. Recognising the particular vulnerability of women to such conduct, the Lords concluded that it was legitimate to extend the scope and reach of the offence in order to afford them additional protection and to enable punishment harsher than that provided by offences under existing telecommunications legislation.
This development produced, as one might have anticipated, a flurry of conventional doctrinal critiques discussing the merits and demerits of the decision, and was integrated into more inter-disciplinary commentaries, particularly those concerned with feminist analyses of the criminal law and the extent to which the judiciary were slowly coming to recognise and acknowledge the particular experience of women in their reasoning.
Jump forward to 2003. In that year, a Somali man, Mohammed Dica, lost his appeal against conviction for having inflicted grievous bodily harm on a woman, Deborah, after infecting her with HIV. Although the ground of his appeal was that the jury had been misdirected on the defence of consent, the case only was only able to come to court in the first place because the decision in Ireland and Burstow had allowed the prosecution of those who caused harm without the application of force (in this case the transmission of a virus during sexual activity). The following year saw another such case, that of Feston Konzani, in which the Court of Appeal clarified the meaning of consent (though not what recklessness meant, because this was not denied). Consistent with the language in the newly enacted Sexual Offences Act 2003, the Court held that only a willing or conscious consent (i.e. one gained ordinarily through disclosure of HIV status) was effective to provide a defence, however generally knowledgeable about STIs and safer sex the complainant might be. Just as with Ireland and Burstow, these cases too provoked substantial academic commentary in articles and textbooks, and quickly became favourite topics for seminar discussions, examination questions and moots across the universities. What did they tell us about the courts’ approach to harm, to fault, to consent? What about people with ‘flu or TB? Is sex in the absence of HIV disclosure rape, and if not, why not?
As far as the substantive law is concerned, that’s the end of the story – at least in this jurisdiction. Another chapter in the accretive development of the criminal law accomplished. We know what the law is and the reasoning behind it; we can apply the Court of Appeal’s principles to analogous fact situations and distinguish those which are materially different; we can move on.
Account Two – Policy
1998. The New Labour Government has been in office for a year, and it issues a White Paper on reform of the OAPA. That White Paper explicitly addresses the question of criminalizing the transmission of disease. Instead of supporting the Law Commission’s recommendation that the reckless transmission of disease should be a criminal offence, it takes a more restrictive line, arguing that only intentional transmission of serious disease should be criminalised. In so doing it explicitly recognises the potentially adverse public health impact of any other approach. It states:
An issue of this importance has ramifications beyond the criminal law, into the wider considerations of social and public health policy. The Government is particularly concerned that the law should not seem to discriminate against those who are HIV positive, have AIDS, or viral hepatitis or who carry any kind of disease. Nor do we want to discourage people coming forward for diagnostic tests and treatment, in the interests of their own health and that of others, because of an unfounded fear of criminal prosecution.
The reasons underlying this explicit statement of policy, reiterated at the time in correspondence between the Home Secretary, the Home Office and the All Party Parliamentary Group on AIDS, are important. In 1997, an English woman – Jeannette Pink – had been infected with HIV in Cyprus by a lover she met while on holiday there. This provoked outrage in the national press, with calls for the punishment of those who might do the same on British soil. The Terrence Higgins Trust, for whose legal services group I was working at the time, responded by meeting with the Home Office and the Department of Health, explaining what the negative consequences of criminalization might mean for HIV prevention efforts. The Government bought the argument in full and reflected them in the White Paper. Critically, at the time of the White Paper’s drafting, the decision in Ireland and Burstow hadn’t been handed down, and the Government held the (reasonable) belief that criminalisation of disease transmission was impossible under section 20 of the Act. Critically too, the Government never brought forward a Bill to amend the OAPA so that the development of the law in this area was determined not after evidence-based deliberation in Parliament, but by the application of precedent and common law principles derived in a case having nothing to do with HIV or serious transmissible disease.
Fast forward to 2005, two years after the first conviction for reckless transmission. The UK Coalition, an HIV interest group, writes to the Home Office to express its concern at the prosecutions, despite the assurances given earlier by the Home Secretary. The Home Office responds with a letter in which it regrets not finding parliamentary time for the promised legislation, and affirms the Government’s desire not to discriminate against people with disease, the importance of not dissuading people from testing and seeking treatment, and the shared nature of responsibility. However, it goes on to state that
... the question of disease transmission does raise other issues. There is a degree of individual responsibility required in dealing with serious transmissible diseases. And the law should reflect this. It needs to balance protecting individuals from being prosecuted for acts which were unavoidable or excusable, and protecting others from avoidable spread of disease. This is clearly a difficult balance to maintain.
It concludes:
All these are very sensitive issues, and it is important that we do not hastily change the law in ways which may have unforeseen and undesirable consequences.
Which, given the fact that 16 people have been convicted in England and Wales since 2003 is somewhat ironic.
Account Three – Activism
1998. The publication of the White Paper, and those of us involved in the discussions with the Home Office and Department of Health are content. Government appears to have listened to reason. But Ireland and Burstow is decided, and in the absence of legislation we are concerned that it is only a matter of time until the first transmission case comes to court.
2003. Our concern is justified. Learning of Mohammed Dica’s trial, we organise a meeting of legal academics and professionals, academics in other fields, activists, NGOs, HIV clinicians, psychologists and others to discuss a response. Our principle worry at this time, affirmed subsequently by the prosecutions of Feston Konzani and Kouassi Adaye, is that the law is being applied discriminatorily against black African migrants. We are also concerned about the impact that the prosecutions may have on HIV-related stigma and discrimination, and on testing and access to treatment.
We leave the meeting committed to addressing these concerns using our specific knowledge and expertise. The Terrence Higgins Trust, the National AIDS Trust, George House Trust in Manchester, and other HIV NGOs put the issue on their agendas, brief counsel, and seek leave to intervene in Dica’s appeal to the House of Lords – leave for which is refused. Doctors begin to promote within the British HIV Association, psychologists within the British Psychological Society. Local HIV service providers raise the issue with their service users and start the process of increasing knowledge of the law among those affected by it. Their engagement, because of their mission, could be – and was – practical. How can we organise effectively (a) to change the law or (b) if that’s not possible, to limit and minimise its impact on HIV prevention efforts, on those living with HIV and AIDS and on the relationship between health care providers and patients?
And these efforts begin to pay off.
Criminalisation appears as a topic at national meetings of professional associations; articles and editorials appear in the journals of the NGOs; doctors and nurses arrange organise briefing seminars. NAT collates details of all the cases, and THT enters into a dialogue with NACPO about the they are investigated.
Significantly, in 2005, after persistent lobbying, the CPS agrees to set up a working group to look at prosecution policy in this area and in 2008 issues Guidelines clarifying the circumstances in which prosecutions should be pursued. It specifies, for example, that evidence of consistent condom use will normally preclude a finding of recklessness; and it acknowledges (taking into account the interventions of expert virologists) that proof of causation cannot be established merely through the use of the phylogenetic evidence which many defendants (and lawyers) have assumed to be conclusive of responsibility for infection.
These are the three accounts. They are distinct, but inter-related. In the legal account, criminalization of HIV transmission is understood essentially as a doctrinal phenomenon, a classic effect of the common law’s approach to legal reasoning. Criminalization exists outside the epidemiological dimensions of HIV and distinct from the social and psychological experience of people living with the virus, things which are essentially irrelevant to what amounts, in essences, to a technical question of liability. In the policy account, there is a nod to these issues, but they are not determinative. The policy account provides us with some insight into the potential for experts and interest groups to make a difference, and into their powerlessness relative both to the judiciary (who change the law with no acknowledgement of or interest in its unintended and potentially damaging effects), and government (who – in the absence of political will and unwilling to make parliamentary time – simply allow things to slide). And the activist account – even in its brief form here – shows how, confronted with legal and political realities, interested groups and individuals can mobilise in response to those realities and make a real difference.
That’s all well and good; but these three accounts do not help explicate the role and function of legal scholarship in the process of criminalization, which is what I am really interested in here. So bearing these accounts in mind, that’s what I turn to now from an unashamedly autobiographical, perspective.
Part Two
My involvement in this area was the result of personal loss. In the late 1980s my best friend from school, Mark, contracted HIV. He fell ill before anti-retroviral therapy became available in 1995 and died of an AIDS-related illness in 1993. At the time I was working in London, at Birkbeck, completing my DPhil on the regulation of financial services. Mark’s death had a profound impact on me, and soon after I went to work as a volunteer with the Terrence Higgins Trust. There I began working with volunteer lawyers in the legal services group, which at that time was involved primarily in providing advice to clients about disability benefits, living wills and how to manage the non-availability of life insurance. We were also involved in lobbying government on policy in these areas.
Then, in 1997, the Jeanette Pink case came to light, and a group of us became heavily involved in lobbying the Home Office and DoH. Our aim, as I’ve explained, was to head off at the pass the criminalization of reckless transmission in England and Wales – something that was being called for by many of the tabloid newspapers. Our concern was that despite the increasing availability of anti-retrovirals, people would avoid coming forward for testing and treatment if a new offence was introduced. Soon after, the decision in Ireland and Burstow was handed down and those of us at the Trust with an academic interest in criminal law realised that this paved the way for bringing cases without the introduction of a new offence. Criminalization, we realised, could happen by the back door (which is what, of course happened).
It was this that prompted me to completely shift my academic research focus. I moved from insider dealing and corporate compliance to the impact of law on people living with HIV, more specifically the impact of criminal law. I gave a paper on the topic at SLSA in Bristol in 2000 and published my first piece in the Journal of Social Welfare and Family Law in 2001. It is, re-reading it, a heartfelt piece and it surprises me in retrospect with its passion and its relevance for what I am talking about today. If you will excuse me, I just want to quote one passage from that article – it comes after explaining that much of the published work in the field of HIV and law is of a practical / how-to nature. I say
Of course, in the real world of HIV/AIDS and practical lawyering, the world in which people affected by HIV/AIDS do experience discrimination and censure and do need advice, representation and protection, this work is of fundamental importance. Indeed, the need to think through the relationship between HIV/AIDS and law in this way, at this level, has never been more important. But it is not enough. In addition to this mode of legal engagement we need to address other questions about what thinking about HIV/AIDS within law entails both for HIV/AIDS and for law. Doing this requires the problematic transition from thinking as a lawyer about HIV/AIDS to thinking about what it is to think as a lawyer about HIV/AIDS. Only from this perspective may we hope to understand what we, as lawyers, are doing when we engage with HIV/AIDS – when we construct HIV/AIDS as a problem for law, whether intellectually or in practice.
This is difficult. Not in the sense that the intellectual and analytical challenges its subject raises are substantial (although they are); rather, it is difficult precisely because the very thought of treating the subject intellectually and analytically is one to which I find myself resistant. When I reflect on HIV/AIDS it is not primarily as an academic lawyer that I do so. Certainly this role, which creates a particular ‘way of seeing’, has affected the way I think about the problems which HIV/AIDS poses for law; but it has not helped me either in my search to understand what the relationship between HIV/AIDS and law is or ought to be. In confronting these, more fundamental, problems I find myself thinking not as a lawyer, but as a man whose understanding of what being gay means has been formed in the time of HIV/AIDS, as a man who has lost friends to AIDS, as a man who has friends living with HIV/AIDS, and as a man both fearful of, and also, in some sense emotionally and politically empowered by, HIV/AIDS. It is within this complex network of associations and paradoxes, and only within them, that I seem able to think about the space where HIV/AIDS and law connect.
What is interesting to me now is not the substance of what I wrote – I still subscribe fully to this view – but how this “way of seeing” has played out in what I have done, and what I felt I ought to do, subsequently.
First, I was an academic lawyer. That was, and remains, my profession. As such, I saw my role as someone whose primary responsibility was to engage in sound, well-reasoned, critical analysis of the law. If I was to be taken seriously in my field, I would have to publish the right things in the right places and conform to the scholarly expectations of my peers in the academy. At one level, this was relatively easy. I had been educated in particular way and I had the requisite skills – I understood the craft, and I understood the game. So I published on the subject – both in mainstream journals, like the Criminal Law Review and the Modern Law Review, and in ones with a particular critical focus, such as Feminist Legal Studies. I did conventional commentaries on the cases of Dica and Konzani, identifying what I understood to be problems with the legal reasoning in those cases, and found myself footnoted in textbooks and on undergraduate reading lists. I wrote a book and found a judge to write the preface. All this was important, even though I raised a few hackles among more conservative colleagues – John Spencer in Cambridge was particularly scathing of the article from which I quoted in a piece in the New Law Journal.
It was important, but it wasn’t enough. During this whole period I was aware that publishing in academic law journals meant an audience – if I was lucky – of other academics; and other academics (for the most part) saw this as a recherché topic, of marginal interest and relevant only to an understanding of week three – non-fatal offences against the person. For me, though, it was much more than that and after the first conviction in 2003 I started to receive and accept invitations to speak not to other academics at law conferences, but to local HIV activist groups, to service providers and to health professionals. With sponsorship from the ESRC I organised at Keele the first inter-disciplinary and activism oriented seminar series on Law and HIV in this country. I got what might be called a name for myself, which led to my appointment as the law and ethics representative the UK’s Expert Advisory Group on AIDS, and as a consultant to the World Health Organisation and UNAIDS, where I participated in international policy development on criminalization. I fed into the CPS review of prosecution policy. Most recently I was commissioned to write a paper on a right-based approach to HIV in the EU by the Fundamental Rights Agency and have had the honour of being appointed to the Advisory Group for the UN’s recently launched Global Commission on HIV and Law, and of writing with colleagues from across the world briefing papers on the impact on HIV prevention efforts of punitive laws across the globe. I was even commissioned to write a piece for The Guardian about HIV, Law and Human Rights.
Recounted this way, which I have done for particular effect rather than self-aggrandisement, I have achieved much of what I hoped to achieve a decade ago. I found a way of escaping the academy – at least from time to time – and using my academic expertise in contexts where I was able to express my views with some hope that this expertise might make a difference, however slight. But despite the fact that these activities might reasonably be thought to represent professional success, if this is how one understands success, I have only recently come to reflect critically on what the impact of this engagement (both positive and negative) has been on the way I understand my subject, on my role in all this is, and on what the role of a scholar-activist can and should be. These, then, are my preliminary observations on those questions.
I would characterise the impact on scholarship and research as both positive and problematic. On the positive side, activism (which I understand here to be nothing more complex than active engagement with one’s subject beyond the academy) does two inter-related things. It brings insights that simply reading, and being led by, the dominant texts that make up our subject or discipline cannot provide, and it provokes reflection on the way in which we read those texts.
A concrete example. In my area of law the criminalization of HIV transmission is framed within the discourse of criminal law and the liberal principles that underpin it. In this way, I start – as others typically do – with criminal law categories of understanding the topic. So, recklessness is understood as unjustifiable risk-taking, bodily harm as a question of fact to be found by the jury and consent as a defence which, if raised, must be disproved by the prosecution. These are, in turn, informed by the dominant liberal principles of autonomy and responsibility. A person is reckless if he is aware of the risk she is taking and its potential consequences – and so may be punished if she is aware; the harm criterion reflects the value we place on bodily autonomy, or – from a feminist legal perspective – integrity, and so violations of this represent something significant and actionable; and the defence of consent represents the value we place on, and respect we give to, freedom of choice. For one audience – legal academics – these categories and frames of reference are appropriate and meaningful. This is a language they understand.
However, in the absence of what Ian Maxey, an activist social geographer, has termed “critical reflexivity”, we are destined only to speak to each other if we use this language AND, importantly, both to limit our understanding of the ways in which these terms are understood both by those who are directly affected by criminalization (PLHIV) and to limit our capacity to communicate with other audiences. If my interest is only other legal academics, all well and good, but if (as I believe) HIV and its prevention should be understood as a public health issue rather than as a legal problem, then I need to be open to other ways of understanding and of communication.
Let me explain this with three illustrations. The first is drawn from some research I undertook for an article in Reproductive Health Matters with a sociologist and a psychologist. Drawing on material from the national GMSS, we were interested in finding out what the impact of criminalization on HIV positive gay men had been. What we found, as regards knowledge of the law, was that there was widespread and significant misunderstanding. Some thought the crime was like murder or manslaughter or charged as rape, while others thought that if they disclosed their status they were OK and others thought that only deliberate infection was criminal. On one reading, an objective, doctrinally focused one, these are simply factual errors to be dismissed as such. The offence is not charged as rape, disclosure is – in effect – necessary for raising the defence of consent but is not sufficient (there has actually to be consent), and – as we know – recklessness is enough to sustain a charge. On another reading, this is the real experience of gay men with HIV. As agents in the criminalization process, these “errors” may have real effects and as categories of understanding that frame and influence action they are ones which I think need to be taken seriously. Such findings suggest, for example, that as a scholar-activist in the field, one direction for research could – and should – be the ways in which groups affected by a particular criminal law regime understand that regime, and so contribute to the empowerment of that group. Simply writing an analysis for the Criminal Law Review about the Court of Appeal’s failure adequately to address the defence of consent is not enough. Not because it is not intellectually valid (it is); but because it will only ever be a partial account that fails to problematize, and so reinforces, dominant and potentially oppressive categories of understanding.
The second illustration relates to harm. On a traditional criminal law reading, the harm in HIV transmission cases is the serious bodily harm that transmission of HIV represents. This is so blindingly obvious, seen through the criminal doctrinal lens, that it generates little or no comment in most legal articles on the subject. However, if one examines the cases that have been brought, what one finds is that they are unified NOT by the fact of transmission – if this was the central issue for complainants, there would be many more cases than we have had. Some 90,000 people are living with HIV, of whom 60,000 know their status. No, what unites them is betrayal. In nearly all the cases reported in the media the dominant concern of complainants is that they were lied to. A person infected by a lover with whom they want to continue a relationship does not go to the police; it is only those for whom the fact of deceit undermines the basis of the relationship who seek redress through the criminal law. To this extent, the official story of criminalization – the one that centres on the impact of infection as the reason and justification for criminalization – is false. Most people who know the identity of their infector do not instigate proceedings. Liability under section 20 of the OAPA is not framed in terms of deceit, and so convictions have the effect of reinforcing the idea that HIV infection itself is so appalling that those living with the virus have legitimate reason to blame others for this. To this extent and in this way it reinforces HIV-related stigma, which in turn leads to low self esteem, and acts – as research has shown – as a barrier to disclosure and increased risk-taking. Taking the time to work with and enter into dialogue with PLHIV, to read the Crown Court case transcripts, media reports and the testimonies of complainants and defendants, rather than relying on the context-deficient reports of the Court of Appeal, helps me – as an academic – to provide a fuller, and I believe more truthful, account of criminalization and its impact.
I turn now to the problematic dimensions of activist engagement on scholarship. These, for reasons of time, I will only summarise.
The first is institutional credibility. As researchers and scholars in a particular discipline, our primary audience is researchers and scholars in that discipline. It is this audience which determines whether our work gets published in the leading journals of our discipline, whether our grant proposals are successful, and whether we are promoted. To take the scholar-activist route seriously, while personally and politically invigorating, can have a knock on negative effect in this regard. On this measure I have had some success. I have been published, I have had grants, and I have been (though it took some time) promoted. However, as my involvement has become more intense and my commitment to the activist endeavour more intense and more time-consuming (you need a sixty hour week), further recognition at a purely legal academic level becomes more difficult. Again, a concrete example. This year I published two articles, both co-written, and neither in law journals. One piece was the Reproductive Health Matters article on criminalization and the other for the Journal of the International AIDS Society on HIV-related travel restrictions. Neither would be suitable for mainstream law journals, and neither is REF-able. I am proud of this work, and know that it was worthwhile and will reach the audiences it was intended to reach; but in purely legal scholarly terms it doesn’t count and has no institutional value. The lesson? If you are going to go down the scholar-activist route, you need to think carefully about the effects it may have on your professional life.
The second problematic aspect is the frustration that comes with collaboration. As academics we tend to value our intellectual independence highly. You cannot do activism without engaging with others, because it is only by learning to understand the subject that interests you through the lives and experiences of others that you develop critical reflexivity. Collaboration is therefore essential, and enriching, but you have to realise that your agenda is not necessarily that of others. The realpolitik of policy development in agencies such as the WHO, UNAIDS and the Fundamental Rights Agency (which decided that the six weeks of work and 30,000 words I produced were not really what they were looking for) can be profoundly disheartening. To be a scholar-activist means finding the narrow line between being true to your ideals and biting the bullet of compromise. It means both holding on and letting go, or in Ian Maxey’s words again “doing as much as I can from where I am at”.
Thirdly, and finally, it seems to me that effective and satisfying activist research and scholarship requires learning to be sensitive both to the privileged position that we hold as academics in the academy, and to the standpoint from which we investigate the world and the effects of this. If one of the liberatory and progressive benefits of such work is a commitment to treating those we are studying as subjects rather than objects, then this means ensuring, so far as possible, that we recognise our role in framing the debates we enter into and the questions that we pose. Writing about the methodology that informed her approach to institutional ethnography, Dorothy Smith wrote that
“... people’s practical activities in the world and the practical consciousness that grows from these, influences where they choose to start investigating the world, which in turn shapes what they can discover.”
It’s hard to disagree with this, nor with Smith’s trenchant assertion that while the experiences of people are crucial to an understanding of the world, they are not the truth of anything. Rather, sensitivity to standpoint and a willingness to reflect actively on this shifts the ground of knowing and the place where inquiry begins. Salaried academics in research-led universities have the freedom (when increasingly precious time permits) both to think and to do. The temptation to assume that we know what needs to be researched and how that research should be done and communicated is hard to resist because of our learned professional identity. But we have to accept, I think, that while it is right and proper to stick to our intellectual guns (what else are we for?), we will only contribute to social change if we take time to examine closely the connections between our research and that .
I want to end with observations by two academics who have addressed the relationship between academia and activism more cogently than I have here. The first is a passage from an article in the Law and Society Review by Frank Munger entitled “Inquiry and Activism in Law and Society”. Writing about the very relationship I have been discussing here, he says:
For the activist, the most satisfying research reshapes understanding in ways that open new paths for activism. On one hand, research speaks directly to activism when it is critical and reconstructive. On the other hand, research always presents a contingent version of reconstruction. Thus, social inquiry makes activism more effective but makes the direction and strategy of activism contingent upon the scholars’ unanticipated findings.
In turn, activism makes inquiry contingent. Activism motivates by making research particularly exciting when it enables change. However, if we take our activism seriously, we ought to make conditions and strategies for change part of our research agenda. Thus the commitment to activism may render our research agenda contingent upon an evolving model of historical relevance.
At a time when legal aid cuts are making access to justice for the most vulnerable ever more problematic, university funding for the arts and humanities is being cut and the pressure on taking ever more students with its concomitant increase on teaching load is greater, Munger’s words ring very true. I, for one, am questioning my academic priorities and have decided to put my efforts over the next year into a new free law clinic for PLHIV in London. This initiative, developed in collaboration with a firm of solicitors and an HIV service organisation, would not have been possible without the status and credibility that my academic career has afforded me; and it may (or may not) provide the opportunity to develop new and fruitful areas of research into the impact of law on PLHIV. But if it does, that research will not derive its validity and value from my intellectual fascination with the subject – from my own agenda – but from active engagement with, and respect for, the people the clinic is intended to serve.
The second passage is from one of my own academic heroes – Nicholas Blomley. Writing in 1994, he is uncomfortable with the typology of academic involvement in progressive politics suggested a few years earlier by Cornel West. West’s preferred model was for the intellectual as critical organic catalyst – someone who remains inside the academy in order that they keep abreast of, and are close to, academic developments but who is also grounded in outside the academy in progressive organisations representing “the best of the organised forces for greater democracy and freedom”.
While Blomley is attracted to this idea of being doubly grounded, he worries – rightly in my view – that this assumes and perpetuates its own hierarchy, one in which the life of the mind only happens in the university, and action only takes place outside it. Although he believes, as I do, that there is a place for academic contribution (for example in conceptual framing, and developing theoretical narratives) he writes:
I am still left with a search for an alternative model, one that navigates between the opposed perils of academic elitism and political disengagement. How can we contribute to and learn from progressive struggles without reinforcing the hierarchies of privilege, silencing those with whom we work? What can I offer? What do grass roots activists stand to lose from such an exchange? Does my status and economic power necessarily create distance? Is our role that of catalyst, facilitator, or student? How much of my angst entails a quest for self-validation or ‘holier-than-thou’ status? How much of ourselves are we willing to put on the line, given an institutional system that rewards docility and obedience?
These seem to be the right questions, even if the answers to them remain elusive.
References
Blomley, Nicholas 1994. Activism and the Academy. Environment and Planning D: Society and Space, 383-85.
Munger, F. 2001. Inquiry and Activism in Law and Society. Law & Society Review. 35(1): 7-20.
Weait, M. 2001. Taking the Blame: Criminal Law, Social Responsibility and the Sexual Transmission of HIV. Journal of Social Welfare and Family Law, 23(1): 441-457
West, C. 1991. Theory, pragmatism and politics. In, J. Arac & B. Johnson (eds.)
Consequences of Theory. Baltimore, MD: Johns Hopkins University Press, pp.
22-38.
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