Seropolitics and the Criminal Accusation of HIV Non-Disclosure in Canada

Abstract

This paper examines the criminalization of HIV non-disclosure in Canada as a public health legal response. The analysis begins outside the public health framework to relate the criminalization of HIV to broader shifts in the relationship between life and law in contemporary forms of governance. It does this by drawing on the concepts of biopower and biopolitics to explain how the intersection of medical and legal knowledge creates an accusatorial framework that has made HIV criminalization possible. This idea is explored by tracing the historical development of the legal principle out of which the phenomenon has emerged (“fraud capable of vitiating consent to sexual relations”) and looking at how it has been applied in two contemporary HIV prosecution cases: R v. Aziga (2007) and R v. Ngeruka (2015). The second half of the paper examines the effectiveness of the criminal accusation of HIV non-disclosure as a public health legal response, focusing on its effect on advancing traditional public health goals. The discussion also points out how criminalization of HIV non-disclosure manifests broader tensions that have been recognized in public health legal responses to communicable disease, particularly the challenges of protecting the public while respecting individual rights. The paper concludes by arguing that control over blood blurs medical and legal forms of knowledge and power. This reflects a “seropolitical” landscape characterized by a criminal law accusatorial framework shaped by medical determinations of risk and harm.