I HIV Nondisclosure and the Criminalization of Emotional Harm

Few scholars have explored what the notion of harm entails—either physically or emotionally/psychically—in HIV nondisclosure cases. One notable exception is Matthew Weait, who questions whether HIV should be treated as a harm by the criminal law. Weait (Reference Weait, Stanton and Quirk2016, 33) argues that “what makes HIV a harm is not HIV per se but the moral context in which the infection occurs.” He defines new HIV infections as nothing more than a naturally occurring phenomenon. Illness and death are the effects of living with HIV and while they can be harmful, they are not in and of themselves justifications for “treating [HIV infection] as necessarily a harm for the purposes of criminal law” (Weait Reference Weait, Stanton and Quirk2016, 34, emphasis in original). We support Weait’s argument that HIV exposure and transmission via nondisclosure are harms that should be addressed, albeit not by the criminal law. Instead, the effects of exposure via nondisclosure are better conceptualized as emotional harm, reflecting Feinberg’s (Reference Feinberg1987) description of mental pains and forms of offendedness that do not meet the criteria for criminal wrongdoing using the harm principle. As Feinberg (Reference Feinberg1987, 46) argues, hurts that include physical pains like aches and stabs, mental pains such as “‘wounded’ feelings, bitterness, keen disappointment, remorse, depression, grief, ‘heartache,’ despair,” other “nonpainful forms of physical unpleasantness [such as] nausea, itches, dizziness, tension,” and nonpainful mental states he classifies as “forms of offendedness,” including, “unpleasant sensations, disgust, shocked sensibilities, irritation, frustration, anxiety, embarrassment, shame, guilt, boredom, and certain kinds of responsive anger and fear” do not constitute harms to be addressed through criminal law. Feinberg’s (Reference Feinberg1987) limited offence principle positions profound offenses such as revulsion and disgust, hurts such as harmless throbs and pangs, and other feelings such as shame and embarrassment, as potential wrongful setbacks to interests that could justify criminal prohibition if they are sufficiently severe or prolonged.

To determine whether the mental distress is severe or prolonged enough to justify criminalization, we turn to Feinberg’s (Reference Feinberg1987) discussion of the linked maxims of the gravity and probability of harm, wherein the greater the gravity of the harm, the less probable the harm needs to be to justify prohibition of the harmful activity. Likewise, the more probable the harm is, the less grave it needs to be to justify criminalization. Our understanding of HIV nondisclosure as emotional harm does not fall under the harm principle, nor does it subscribe to the individualized understanding of harm that law propagates and that Feinberg details in his four-volume work on the harm principle. Instead, we propose that emotional harm be considered as something that is socially constituted and relationally produced and felt.

While we classify HIV exposure via nondisclosure as an emotional harm that falls outside of the harm principle, we cannot deny the disruption to one’s life and sense of self that learning and having to manage an illness that lives “in wait” in one’s body can represent (Ciambrone Reference Ciambrone2001). Accepting Feinberg’s (Reference Feinberg1987) maxims, the continued criminalization of HIV exposure via nondisclosure evinces HIV exceptionalism in Canadian law, given that transmission is rendered less probable through condom use and/or a low viral load (UNAIDS 2018). HIV exposure from nondisclosure is a harm in the emotional sense insofar as it causes feelings of anxiety, fear, and shock until the undisclosed-to-person receives a negative HIV test result, at which point those feelings may subside and feelings of betrayal and anger (may) surface. This kind of emotional harm and the feelings attached to it “reflect the victim’s recognition of the harm that he has suffered [and] if he did not realize that he had [not] been [disclosed to], this would not mean that he did not suffer a harm of this distinctive kind; it would mean that he did not realize that he had been thus harmed.” This raises the question “of whether one who does not care […] about the wrong done has still been harmed by it” (Duff Reference Duff2001, 23) and could explain why it is that heterosexual women are the predominant group that reports instances of HIV nondisclosure to police (Hastings et al. Reference Hastings, Massaquoi, Elliott and Mykhalovskiy2022).

Weait (Reference Weait2007, 112) acknowledges that “incorporeal feelings—of time stolen, of a future damaged, of intimacy soured—which may more adequately reflect the harm experienced, are irrelevant in establishing whether an offence has been committed under the law as it stands.” This sentiment was articulated by Justice Beveridge of the Nova Scotia Court of Appeal in R v CAT, who held that “worry, stress, anger are natural emotions on learning of unwittingly being exposed to HIV. But absent a significant risk of serious bodily harm, satisfied by actual transmission or a realistic possibility of transmission, consent is not vitiated” (R v CAT, 2018 NSCA 13 at para 48). This is a significant departure from the lower court decision in R v CAT (2016 NSSC at para 136–144),Footnote ⁴ where Justice Hood found C.A.T. not guilty of aggravated sexual assault, but guilty of sexual assault causing bodily harm because of the psychological harm the complainants endured.

Justice Hood uses the term psychological harm, which he situates within law’s understanding of bodily harm, to describe the harmful effects of nondisclosure.Footnote ⁵ Emotional harm is at the heart of Canada’s nondisclosure laws precisely because risk (the realistic possibility of transmission) and emotions are intimately tied and configure one another, something Lupton (Reference Lupton2013, 641) describes as an “emotion-risk assemblage.”

While we support Justice Beveridge’s conclusion that emotional distress does not meet the threshold for vitiating consent, it also shows the court’s attempt to maintain traditional notions of legal objectivity, which denies that emotions are always-already present in legal judgements about risk. In other words, “judgements about what phenomena should be called ‘risks’ are influenced by the social and cultural context and by personal experience, including the embodied sensations that are defined as ‘emotions’” (Lupton Reference Lupton2013, 638). When individuals make decisions about what they deem risky, they do so by cross-referencing these judgements with their own values and morals about what they perceive to be acceptable and harmless and what they perceive to be dangerous or threatening. These appraisals are tied to emotions because “all thought and reason is inevitably emotional” (Lupton Reference Lupton2013, 641). By reducing judgements about right and wrong to experiences of hurt, pain, or suffering, we sustain forms of violence that go unnoticed, unfelt, and unacknowledged (Ahmed Reference Ahmed2004), such as the violence experienced by PLWH who are criminalized for nondisclosure (McClelland Reference McClelland2019). That criminal law is ill-equipped to deal with the nuance and messiness of emotions and feelings, particularly in the context of interpersonal relationships (Eisenberg Reference Eisenberg2015), suggests it is problematic to define a crime based on how it is imagined to make a person feel.

By criminalizing HIV nondisclosure to address emotional harm and protect the HIV-negative body politic, the courts have created a “truth” or norm about what harm is even though there is no consensus on this (Hillyard and Tombs Reference Hillyard and Tombs2007; Pemberton Reference Pemberton2015). Social theorists contend that harm is difficult to define as it is subjectively experienced, meaning what one person experiences as harm may not be harmful to another person (Hillyard and Tombs Reference Hillyard and Tombs2007). Similarly, what law defines as a harm does not reflect a universal experience, but rather the paternalist and moralist norms that buttress legal interpretations of harm. For example, in R v Cuerrier (1998, para 142) Justice Cory stated that criminal law:

Although written twenty-five years ago, when PLWH experienced more overt and persistent discrimination and HIV treatment was much less effective, Justice Cory’s precedent-setting reasoning in Cuerrier situates PLWH who do not disclose as reckless and callous without acknowledging that people routinely consent to activities that involve varying degrees of risk or that decisions to consent to sex are not always completely informed. Pronouncements that the “risks of infection are so devastating” and “the potentially fatal consequences are far more invidious and graver than many other actions prohibited by the Criminal Code” amplify perceptions of the exceptional nature of HIV harms.

We might consider HIV transmission following nondisclosure to fall under the harm principle. Feinberg (Reference Feinberg1987, 215) contends that harm is produced by “morally indefensible conduct that not only sets back the victim’s interest, but also violates his right.” Certainly, acquiring HIV is a harm in the sense that it sets back a person’s interests; however, returning to Feinberg’s (Reference Feinberg1987) mediating maxim on the gravity of harm, we suggest that, with the scientific advancements that have transformed HIV into a chronic but manageable condition (Loutfy et al. Reference Loutfy, Tyndall, Baril, Julio, Kaul and Hankins2014), criminalization is unjustified. As Stewart (Reference Stewart2010, 32) writes, “conduct should be criminalized only if, on balance, criminalization would do more good than harm, and should not be criminalized if, on balance, criminalization would do more harm than good.” HIV nondisclosure that results in transmission where intent to transmit can be proven may be considered a harm for the purposes of the application of the criminal law. Canadian law currently requires no proof of an intent to harm by way of HIV transmission, the highest mens rea threshold compared with negligence and recklessness. We recognize that the absence of proof of intent is not exceptional as there are other crimes that do not require intent to harm. In nondisclosure cases, the law is only concerned with whether disclosure happened prior to sex so as to justify the fraud requirement in the legal test set out in Cuerrier and confirmed in Mabior (Buchanan Reference Buchanan2015). By focusing on disclosure only in relation to HIV, the law perpetuates HIV/AIDS exceptionalism and reveals the pervasive stickiness of emotions (Ahmed Reference Ahmed2004) like fear and disgust to HIV (Bogosavljević and Kilty Reference Bogosavljević and Kilty2021). These emotional attachments situate nondisclosure as a moral failure that angers, scares, and disgusts, emotions that underpin state efforts to manage, trace, and criminalize individuals perceived to be threats to the body politic.

The concept of “intent” is complex in HIV nondisclosure cases. Consider the notion of constructive intent in which the defendant does not necessarily set about to harm the complainant, but harm nonetheless occurs and is objectively foreseeable. In the context of constructive intent, can the accused objectively foresee harm to the complainant (i.e., a realistic possibility of transmission) if they have unprotected sex but are adhering to their antiretroviral medications regimen and have an undetectable viral load? Alternatively, can the accused objectively foresee harm to the complainant if they wear a condom but do not have a low viral load? Both of these instances show an ethic of care and an intent to protect rather than harm a sexual partner. This reasoning illustrates how the threshold for nondisclosure set out in Mabior uses a problematic notion of harm that is defined in individualistic terms rather than as something that is socially constituted and relationally produced and felt. While there is not always a clear distinction between emotional and physical harm, particularly if the emotional harm of exposure is so severe that there are lasting effects, it is important not to depend on the criminal justice system to address this harm. Instead, “we need to respond to injustice in a way that shows rather than erases the complexity of the relation between violence, power and emotion” (Ahmed Reference Ahmed2004, 196). This might involve turning to the helping professions and those working at AIDS service organizations, who are better equipped to deal with the emotional harm that arises from exposure (a point we develop in Part IV).

Importantly, we do not diminish the emotional harm that is felt by those who have been exposed to HIV. We recognize that this experience could be linked to feelings of trauma—including those borne from other experiences, such as sexual assault. While nondisclosure may be traumatic for some, the emotional harm felt should not be the basis for using criminal law to apportion blame and assign punishment. We contend that emotional harm (e.g., anger, fear, shock, and/or betrayal) should not be inherently understood as a medical issue requiring treatment (by linking trauma to PTSD for example) or as a criminal problem requiring punishment, but rather “as felt experiences that can be mobilized in a range of directions” (Cvetkovich Reference Cvetkovich2003, 47), including alternative legal or non-legal approaches such as restorative justice, transformative justice, or other methods of reconciliation. This allows us to think past law as a mechanism for dealing with the emotional harm that follows HIV nondisclosure to explore how “trauma can be understood as a sign or symptom of a broader systemic problem, a moment in which abstract social systems can actually be felt or sensed” (Cvetkovich Reference Cvetkovich2003, 43). It also forces us to think of harm in a broader sense than what the law or Feinberg’s (Reference Feinberg1987) definition of harm allows, particularly given critiques that the harm principle has been co-opted by conservative liberalism (Harcourt Reference Harcourt1999). Emotional harm is therefore best conceptualized as an aspect of “social harm” that “acts as shorthand to reflect the relations, processes, flows, practices, discourses, actions and inactions that constitute the fabric of our societies which serve to compromise the fulfilment of human needs and in doing so result in identifiable harms” (Pemberton Reference Pemberton2015, 24). Indigenous teachings and forms of justice help us to see how emotional harm is social and relational; for example, Tynan (Reference Tynan2021, 600) suggests that “relationships between ideas or entities [are] an affective force that compels us to not just understand the world as relational, but feel the world as kin… [and] to enact a relational ethos and the responsibilities and accountabilities that accompany it.” This framework reveals that nondisclosure may cause emotional harm and that the criminalization of HIV nondisclosure fosters state-inflicted emotional and physical harm, making it a demonstrably poor deterrence policy and public health strategy.

II The Emotional and Moral Roots of HIV Nondisclosure Criminalization

Criminalization punishes HIV nondisclosure and tries to protect HIV-negative people from the emotional harm that HIV exposure can manifest as well as the guilt and shame that they may experience in cases where they failed to ask about a partner’s status and/or use a condom. The state’s effort to protect in this regard essentializes complainants as inherent victims, while obscuring the fact that criminalization propagates emotional harm, stigma, and ostracism for PLWH. We maintain that this use of criminal law is rooted in cultural and emotional reactions to the ongoing HIV epidemic, which has long-been described as a moralized crisis (Watney Reference Watney1996).

Emotions play an important role in moral thought and behaviour. Cova, Deonna, and Sander (Reference Cova, Deonna and Sander2015) identify five aspects of the relationship between morality and emotions. First, emotions are considered moral when they present their object as having some moral value or disvalue. For example, this occurs when fear constructs its object as dangerous or when guilt presents the person who feels this emotion as responsible for wrongdoing. Second, emotions are integral to moral evaluation, meaning we determine moral actions with our emotions rather than without. Third, emotions are moral to the extent that they have motivational power—they move us to action. For instance, we are motivated to help someone in need because we feel compassion for them. Fourth, emotions are moral “insofar as their cultivation within a certain individual or society contribute [sic] to fostering morality,” the evaluation of which “requires distancing ourselves from the framework of everyday interactions and ‘reactive attitudes’ to reflect on the value judgements that our affective reactions embody” (Cova, Deonna, and Sander Reference Cova, Deonna and Sander2015, 398). Lastly, because emotions can be evaluated as moral or immoral, individuals can be praised or blamed for having them.

It is worth noting that this debate is only relevant with respect to HIV nondisclosure prior to sex; Canada does not criminalize HIV nondisclosure in relation to injection drug use, for example. The presumption is that drug users choose to use drugs with the understanding that drug use is inherently risky and therefore that they consent to the risk posed by sharing injection equipment. In contrast, complainants in HIV nondisclosure cases are situated as unwitting, innocent victims whom the law must protect. Embedded within SCC jurisprudence is the assumption that moral individuals will disclose their HIV seropositivity, which problematically implies that it is safe to engage in unprotected sex when there is no such disclosure. Following Cova, Deonna, and Sander (Reference Cova, Deonna and Sander2015), we can see that law positions disclosure as the only moral course of action, which, when coupled with emotions like anger (at nondisclosure), disgust and fear (of HIV), results in legal characterizations of PLWH who fail to disclose as dangerous, immoral people who must be censured by law (Kilty and Bogosavljević Reference Kilty and Bogosavljević2019; Adam et al. Reference Adam, Corriveau, Elliott, Globerman, English and Rourke2015; Bennett, Draper, and Frith Reference Bennett, Draper and Frith2000; Chalmers Reference Chalmers2002; Kirkup Reference Kirkup2015). That this application of law undermines decades of public health messaging that encourages us to approach every sexual encounter as a potential risk for infection (of HIV or any other sexually transmitted infection) usefully illustrates the disequilibrium in how we apply moral censure to HIV risk (Kilty Reference Kilty, Hundmarch, Orsini and Gagnon2018)Footnote ⁶ and raises questions as to whose claims are considered credible (Bogosavljević and Kilty Reference Bogosavljević and Kilty2021). Harcourt (Reference Harcourt1999, 131) contends that the harm principle has undergone an ideological shift since the 1960s, where proponents of regulation and prohibition abandoned the rhetoric of legal moralism in favour of the harm principle such that “harm became the critical principle used to police the line between law and morality.”

We suggest that, while it may be morally wrong to lie to a sexual partner, through either active deceit or omission, about one’s HIV serostatus, it is a leap of logic to presume that this moral wrong is a criminal act. This logic reveals that emotions structure our evaluations of the morality of certain behaviours and thus of whether they should be criminalized (Cova, Deonna, and Sander Reference Cova, Deonna and Sander2015). For example, T.S. was convicted of aggravated sexual assault for failing to disclose his serostatus to two women, both of whom tested negative for HIV. Despite the fact that T.S. often, although not always, practised safer sex by using condoms and consistently adhered to his anti-retroviral medication regimen to ensure he maintained an undetectable viral load, the Crown prosecutor argued that T.S. should be handed the severest possible sentence because he “chose” to put two women at risk, one of whom is a single mother while the other was to be an organ donor for her father. In his submission, Mr. Burge stated:

This quote demonstrates the anger and frustration expressed towards T.S. for failing to exercise proper moral judgement with regard to disclosure, even though “for some, silence functions as a technology of self-care” (Kilty, Orsini, and Balogh Reference Kilty, Orsini and Balogh2017). Disclosure is never just about telling someone your HIV status, it “can expose and depersonalize someone, taking things away from them. It gives them the name of the virus and substitutes that for their own name, their own person, even for themselves: ‘I am HIV’” (Squire Reference Squire, Davis and Manderson2014, 152). Given T.S.’s former status as a professional football player in Canada and American immigrant, it is perhaps unsurprising that his was one of the most sensational HIV nondisclosure cases in Canada, complete with extensive hyperbolic and racist media coverage that constructed him as a remorseless sexual predator with an insatiable libido (Kilty and Bogosavljević Reference Kilty and Bogosavljević2019).

The decision to transform the morally wrong act of lying to a sexual partner about one’s serostatus into a criminal wrong reconstructs lying (by act or omission) into reckless indifference by PLWH towards the sexual health of their partners. This discursive move fails to consider the harmful consequences PLWH may face when disclosing their status, including violence, cultural ostracization, and loss of income (Adam et al. Reference Adam, Corriveau, Elliott, Globerman, English and Rourke2015). The perception that all PLWH who do not disclose are indifferent to the health and safety of their sexual partners positions them as immoral, callous, manipulative liars whose liberty should be restricted following the exhibition of society’s collective moral censure via a criminal trial. In contrast, the complainant’s feelings of fear and betrayal (what we classify as emotional harm) reflect moral judgements that motivate some complainants to go to the police. As both Chalmers (Reference Chalmers2002, 162) and Bennett, Draper, and Frith (Reference Bennett, Draper and Frith2000) contend, failing to recognize the distinction between moral and legal obligations around disclosure, exemplified by Canada’s criminalization of both protected and unprotected sex, has the harmful unintended consequence of reducing one’s “incentive to refrain from high-risk activities and to use condoms.” Perhaps more to the point, “the existence of a moral duty is a necessary but not a sufficient condition for invoking the criminal sanction” (Chalmers Reference Chalmers2002, 162).

III Emotional Attachments to and the Harmful Effects of Law

Although the SCC determined that HIV nondisclosure constitutes fraud, we heed Young’s (Reference Young2015) position that this legal reasoning fails to account for the fact that people often engage in sex without disclosing personal, sensitive information about themselves. For example, a criminal record, history of addiction or past sexual behaviour in which they were unfaithful or failed to engage in safer sex practices might dissuade a sexual partner from consenting to sex. Constituting HIV nondisclosure as an act of fraud that vitiates consent while not criminalizing other forms of deceit before sex again exemplifies HIV exceptionalism and the affective attachments that construct PLWH as dangerous threats to the body politic. Criminalization also fails to consider the different materializations of power relations involved in sex and in negotiations of safer sex practices. For this reason, we contend that nondisclosure laws in Canada propagate emotional harm to PLWH, who already experience marginalization in our communities. Young (Reference Young2015, 122) uses the example of a street-based sex worker living with HIV who does not disclose to their client and who may be charged with sexual assault, and asks, “but who should really bear the responsibility for ensuring the avoidance of HIV transmission in the context of this particular relationship”? Disclosure might bring about harm to the sex worker who may not be able to negotiate safer sex practices with her client. Indeed, research documents that PLWH who have been criminalized for HIV nondisclosure experience violence, verbal abuse, and other forms of emotional violence, ostracization from their families and communities, loss of employment and/or the inability to gain employment because of a criminal record, emotional distress in the form of fear and anxiety about their future and of being “outed” as HIV-positive by police press releases and media coverage of their case (McClelland Reference McClelland2019).

Underscoring Carol Smart’s (Reference Smart1989) argument that there is a juridogenic effect to law, meaning that while law purports to remedy harm it also perpetuates it, it is wiser to promote alternative responses to the emotional harm wrought from nondisclosure that do not rely upon the optimism that a criminal trial will provide justice and help one heal. Importantly, optimism in the criminal justice system is predominantly felt by those who are most privileged (i.e., those who are white, cisgendered, and who have a high socioeconomic status). Dilts (Reference Dilts, Struthers-Montford and Taylor2022, 215) contends that our optimism about the criminal justice system is reinforced precisely because “prison may seem to soothe now […] because of the carceral enjoyments of the social death of the criminalized other, the suffering of the marginalized other, and the bad faith of parasitic social life.”

To recognize emotional harms as justification for criminalization “is to hold all our activities hostage to those who are most sensitive to them, reasonably or not” (Stewart Reference Stewart2010, 30). In other words, “the feelings we have are unreliable measures of justice and fairness” (Berlant Reference Berlant, Ahmed, Kilby, Lury, McNeil and Skeggs2000, 45), given that the emotional meanings we assign to events typically reflect what each party believes they are reasonably owed in terms of how one should act and react after or at the time of the event (Hochschild Reference Hochschild1979). This is particularly evident in the context of HIV nondisclosure, wherein the law is overly sensitive to the emotional harm experienced by complainants, while remaining indifferent to the emotional harm experienced by defendants. Ironically, some heterosexual women (the largest group of complainants in nondisclosure cases) view the state with optimism, as an “agent of justice” (Ahmed Reference Ahmed2004, 197) that can deliver a sense of closure (Bandes Reference Bandes1996), despite the long and persistent history of rape culture in which women are routinely disbelieved by agents of the criminal justice system (Ehrlich Reference Ehrlich and Elizabeth2012). Thus a relation of “cruel optimism” exists precisely because the desired justice after a painful experience “is actually an obstacle to [one’s] flourishing” (Berlant Reference Berlant2011, 1). For example, sexual assault victims report that criminal justice processes feel unfair and the personnel insensitive, which can amplify the experience of PTSD symptoms for complainants (Wemmers Reference Wemmers2013).

Indeed, the legal arena limits victims’ emotional expression in relation to the harms they have experienced (Bandes Reference Bandes, Abell and Smith2016; Miller Reference Miller2013), and victim impact statements have been shown to “offend human dignity—the victim’s as well as the defendant’s” (Bandes Reference Bandes1996, 366). The harm claims of victims that are allowed in court are often manipulated by legal actors for strategic purposes (Miller Reference Miller2013), and a victim’s emotions and beliefs about forgiveness and justice often change throughout the legal process, especially if they are pressured to support punitive sentences or the death penalty (Bandes Reference Bandes1996; Reference Bandes, Abell and Smith2016). Victims experience what McGlynn and Westmarland (Reference McGlynn and Westmarland2019, 186) term kaleidoscopic justice: “justice is complex, nuanced and a difficult to (pre)determine feeling. Justice is a lived, ongoing and ever evolving experience and process, rather than an ending or result.” The criminal legal system’s ability to repair harm is hindered by the emotion culture of the courtroom, where legal actors work adversarially and where empathetic judicial displays of emotions are discouraged in the name of “objectivity” (Bandes Reference Bandes, Abell and Smith2016).

Lastly, we must consider the harm that comes from criminalizing HIV nondisclosure—both to individuals and to communities. Previous SCC decisions in Canada (Attorney General) v Bedford and Canada (Attorney General) v PHS Community Services Society considered the harms of criminalization to vulnerable groups such as sex workers and people who use drugs, yet no such consideration has been given to PLWH. These recent judicial shifts away from justifying criminal law prohibitions based on moralism or ideas of offensiveness sit uneasily beside the Cuerrier and Mabior decisions. At present, law perpetuates the suffering of PLWH by creating additional emotional and physical harms that flow from stigmatization, criminalization, and incarceration. Criminalization promotes harm by discouraging HIV testing (Bennett, Draper, and Frith Reference Bennett, Draper and Frith2000; Lee Reference Lee2014) and causes harm to the accused, and to PLWH more broadly, as they are routinely identified in sensational media coverage and thus outed to their friends, family, and community as always-already sexual predators (Kilty and Bogosavljević Reference Kilty and Bogosavljević2019; McClelland Reference McClelland2019), yet there is no evidence that criminalization actually encourages disclosure. Using criminal law is the most, rather than least, restrictive response possible, where, upon incarceration, PLWH experience limited or lack of access to harm reduction measures, which elevates HIV risk in this environment (Kilty Reference Kilty, Hundmarch, Orsini and Gagnon2018). We contend that judgements about what is just or unjust cannot be reduced to how one might feel, for doing so would sustain and conceal certain kinds of violence (Ahmed Reference Ahmed2004), such as that experienced by PLWH at the hands of the state.

The facts in the Supreme Court of Canada’s 2012 decision R v DC exemplify this point well (R v DC, 2012 SCC 48, [2012] 2 SCR 626). DC is a woman who had charges brought against her by a long-term male partner, who, apart from their first sexual encounter, knew she was HIV-positive throughout their four-year relationship. When DC reported to the authorities that the complainant was violently abusing her and her son, he retaliated by reporting to the police that she did not disclose her HIV status prior to their first sexual encounter four years earlier. This case is but one example of the unintended harms that are born from criminalizing HIV nondisclosure, demonstrating that law’s protective intention, as stated above by Justice Cory in Cuerrier, is inherently flawed. If we classify the emotional harm flowing from nondisclosure as a social or relational harm, we can begin to address the ways in which “the harms individuals experience arise from wider relationships in which they are embedded [and capture] the consequential or secondary harms that result beyond the original individual harmed to have an impact on other connected individuals and communities” (Pemberton Reference Pemberton2015, 3), such as the wider HIV positive community. Thinking of nondisclosure as an emotional harm allows us to go beyond transforming the immediate circumstances of the harm in question to imagine and work towards social transformation.

IV Alternative Justice Possibilities for the Emotional Harm of HIV Nondisclosure

Transformative justice (TJ) initiatives offer an alternative approach that counters the hostile environment created by our optimistic attachment to the criminal law as the primary mechanism for pursuing justice for the harms caused by HIV nondisclosure. A transformative justice approach that is grounded in the politics of penal abolition, the Black Liberation movement, Indigenous justice, and queer/trans resistance can be conceptualized as a framework for responding to harm without creating additional harm. Indeed, TJ is distinct from restorative justice (RJ) approaches precisely because restoration entails returning to the same conditions that maintain structural violence, while transformation requires challenging and changing the systems that led to the harm in question (Kim Reference Kim2018; Smith Reference Smith and Ptacek2010).

By reframing the harm experienced from HIV exposure as social and emotional, we can consider alternative forms of accountability and healing to address the root causes of the problem to “generate solutions and healing there, such that the conditions that create injustice are transformed” (Brown Reference Brown, Dixon and Piepzna-Samarasinha2020, 107). Transformative justice requires consensual voluntary participation and may therefore not be a viable option for all cases. It promotes healing between the offended and offending parties within the community and civil society, which enables us to consider the “complex effects of injustice on social life as well as individuals” (Ahmed Reference Ahmed2004, 197). The first step in this approach, is to listen to the “why” when trying to determine the causes of harm, “even—especially—when we are scared of the answer” (Brown Reference Brown, Dixon and Piepzna-Samarasinha2020, 107). Doing so creates possibilities for understanding and for developing and expressing empathy with the person committing the wrongdoing. If we ask why someone fails to disclose their serostatus to their sexual partners, we realize that people may do so for fear of rejection or violent reprisal, as a coping mechanism, to protect loved ones from emotional distress and so on (Rouleau, Côté, and Cara Reference Rouleau, Côté and Cara2012; Squire Reference Squire, Davis and Manderson2014). Therefore, not disclosing can be the “right” thing to do in that moment for that person. Asking “why” questions also allows us to resist law’s power to determine the truth, as Smart (Reference Smart1989) so convincingly urges us to do, thereby creating the conditions to better understand the different truths about nondisclosure as they are materially experienced by PLWH. For example, in a recent interview calling for an end to HIV criminalization in Canada, J.M., a woman convicted of aggravated sexual assault for nondisclosure, stated that “it was never my intent to infect anyone, and I haven’t, and I make it a point to take my medication, so I do not infect anyone” (Wilson Reference Wilson2022).

The second step involves asking, “what can this teach me/us about how to improve our humanity?” (Brown Reference Brown, Dixon and Piepzna-Samarasinha2020, 108). Asking this question allows us to take harmful events as learning opportunities and to recognize and transform the root causes of violence in our communities (i.e., poverty, lack of access to education, stigma, racism, patriarchy, and other forms of structural violence) rather than merely responding to injustices as they happen, in ways that do not offer opportunities for accountability and healing for those directly impacted by the violence. If we understand that PLWH choose not to disclose their serostatus because of ingrained HIV-related stigma and fear of a variety of possible harmful consequences associated with disclosure, we are better able to see the importance of creating the kind of socio-political and cultural conditions where PLWH feel safe and supported to disclose their status to their sexual partners. By criminalizing HIV nondisclosure, we are creating an ever more hostile environment for PLWH that increases, rather than limits, HIV-related stigma. Indeed, initiatives move us away from focusing on the individual causes of violence to examine the structural causes (Kim Reference Kim2018). As such, these justice practices empower communities to address harm without relying on a punitive criminal justice system that promotes further harm to individuals and communities, thus urging a different affective relation to the harm of HIV nondisclosure.

For example, WomenatthecentrE is a survivor-led non-profit organization in Canada working to end gender-based violence (GBV). Their Transformative Accountability and Justice Initiative (TAJI) is a voluntary program that “wraps the survivor and aggressor in compassion and kindness, leaving shame behind” while promoting transformation, healing, and accountability (WomenatthecentrE, 2021). TAJI connects survivors and aggressors with individual support teams made up of community advocates, other survivors, and people working in the GBV sector and offers a series of workshops and a counselling program.Footnote ⁷ During the workshops, survivors examine the societal conditions that lead to GBV and have access to trauma counselling, while aggressors learn about consent, toxic masculinity, patriarchy, empathy, and why “hurt people hurt people.” Aggressors also develop a “personal accountability and transformation statement” that contextualizes the harm they caused and outlines how they will demonstrate accountability (e.g., strategies for maintaining healthy relationships with women) (WomenatthecentrE, 2021). If both parties agree, staff will facilitate communication or meetings between them. For nondisclosure cases, peer and professional staff members working with AIDS Service Organizations could be involved in this kind of support and mediation work, which they have long provided in relation to safer sex practices, HIV, and what it means to live with the illness (Kinsman Reference Kinsman1996). This article contends that if there is no intentional transmission of HIV, there should be no crime. Instead, alternative transformative justice responses to HIV nondisclosure in which people can work through the emotional harms they have experienced and/or committed by better understanding the social conditions that contribute to them would be distinctly community-based rather than components of a diversionary sentencing process.

By transforming the socio-political and cultural conditions that enabled the harm in the first place, transformative justice efforts cultivate accountability, healing, resilience, and safety. These alternative forms of justice can involve difficult emotional processes that require time, patience, and a willingness to engage in tough conversations. In other words, it is “not about pack hunting an external enemy, it’s about deep shifts in our own ways of being” (Brown Reference Brown, Dixon and Piepzna-Samarasinha2020, 108). While we might be inclined to devise mechanisms of accountability for those doing the harming (as we have done with criminal law), a transformative justice approach emphasizes that mechanisms of accountability should be jointly decided by the person who was harmed, the person who committed the harm, and, where relevant, various community representatives. In this way, “communities are also sites for prevention, intervention, and transformation, spaces where interventions can be imagined, initiated, and implemented” (Kim Reference Kim2018, 227). As such, there is no one-size-fits-all method of responding to violence, harm, and injustice in our communities. Complex problems demand multi-faceted responses.