‘Now, the question here is who to believe’: criminalising HIV nondisclosure, emotions and determinations of credibility in R. v. T.S.

Abstract

This article examines how the judge, defence counsel and Crown prosecution in R. v. T.S. mobilised feeling and framing rules to assess the credibility of the complainants and accused. T.S. is a former Canadian Football League linebacker who was convicted of aggravated sexual assault for failing to disclose to two women that he is HIV positive. Our analysis of the trial transcripts reveals how T.S.’s failure to disclose his HIV-positive status and his lack of an overtly emotional courtroom display led to his construction as callous towards the health of his sexual partners and subsequently to his characterisation as noncredible. Alternatively, the complainants had to authentically re-perform their original emotional reactions to learning that T.S. was HIV positive while testifying in court in order to be deemed credible. This signals the retroactive aspect of emotions in the context of a trial. Using Ahmed’s notion of the ‘stickiness of emotion’, our second finding reveals that while the type and intensity of emotional courtroom displays structure interpretations of credibility in criminal trials, moral emotions such as indignation, fear and disgust stick to HIV. This implies a connection between perceptions of morality and credibility where people living with HIV/AIDS who fail to disclose are assessed as always-already unremorseful and noncredible thereby showcasing the continuity of HIV stigma. We show how determinations of credibility in HIV nondisclosure cases can problematically devalue the emotions that structure disclosure decision making in favour of prioritising the feelings of anger, shock, fear, frustration and disgust felt by complainants.