Table of Contents I. INTRODUCTION II. TELLING STORIES OF HIV/AIDS: A BRIEF HISTORY III. CASE STUDY A. The Law of HIV Non-Disclosure in Canada 1. Sexual Assault Provisions 2. Murder and Attempted Murder B. The Ottawa Case Study 1. Release of Name, Photograph, Details About Sexuality and Personal Health Information 2. Coverage of the Story 3. Harms Flowing From the Police Press Release and Media Coverage IV. STRATEGIES FOR REFORM A. Legal Strategies B. Ethical Strategies 1. The Police 2. Journalists V. CONCLUSION "If [AIDS] is to be a metaphor for anything, it is up to us to make sure that in time it becomes regarded as a glaring example of how the ill may be victimised far beyond their physical symptoms ...."
--Simon Watney (1)
In 2010, a 29-year-old gay man (2) in Ottawa, who had recently been diagnosed as HIV-positive, was arrested and initially charged with one count of aggravated sexual assault and one count of breach of probation. As the investigation proceeded, he was charged with additional counts of aggravated sexual assault, along with attempted murder and administering a noxious substance--his semen. (3) The man allegedly failed to disclose his HIV-positive status prior to engaging in sexual activities with partners he met online. Two days after they arrested him, the Ottawa Police Service made the decision to release a photo of the accused to the public with the stated goal of uncovering other potential complainants and encouraging them to seek medical attention. The press release not only 'outed' him as being gay and having sex with several men he met online, but also disclosed his personal health information. Given the nature and severity of the charges, many people correctly suspected that the accused was HIV-positive, even though the press release did not specify his medical condition. (4)
Using this series of events as a case study, this paper examines the complex issues raised when police departments issue press releases in HIV non-disclosure cases and journalists subsequently cover these stories. While recent legal scholarship in Canada has tended to focus on whether the harms associated with failing to disclose ones HIV-positive status prior to engaging in sexual activities should be targeted by the criminal law or are better suited to public health frameworks, (5) the goal of this paper is to move the discussion in a new, perhaps more fruitful, direction.
With the October 2012 decisions of the Supreme Court of Canada in R v Mabior (6) and R v DC (7)--fourteen years after the Court's landmark decision in R v Cuerrier (8)--the unfortunate reality is that the criminalisation of HIV nondisclosure as a matter of Canadian law is here to stay, at least for the foreseeable future. In Cuerrier, the Supreme Court held that failing to advise a sexual partner of one's HIV status constitutes fraud, which vitiates consent in circumstances where there is a "significant risk of serious bodily harm."(9) Given the risk of serious bodily harm associated with the transmission of HIV the Court reasoned that the operative offence is aggravated sexual assault, an offence that carries with it the maximum sentence of life imprisonment. (10) Recently, the Supreme Court explained that the "significant risk of serious bodily harm" test developed in Cuerrier meant a "realistic possibility that HIV will be transmitted.' (11) The Court also noted that a low viral count, as a result of medical treatment, and use of a condom would result in the realistic possibility test not being met. (12) In light of these recent decisions, it may be useful to press pause on the "criminal law versus public health" debate and, instead, begin to consider how to reduce the harms associated with contemporary practices of both police and journalists in HIV non-disclosure cases.
To begin to move the scholarly discussion in this area in a new direction, this paper poses three central questions. First, how did journalists cover the HIV/ AIDS epidemic of the 1980s and what connections might we draw from the ways in which they cover contemporary HIV non-disclosure cases? Second, what does the Ottawa case reveal about the complex relationship between the stigmatization of HIV/AIDS, police practices, journalistic ethics and the criminal law? Third, what strategies--both legal and ethical--might we use to better ensure that the ways in which stories of HIV non-disclosure are communicated to the public do not further stigmatize the condition itself, as well as people living with it?
In grappling with these three questions, this paper will first argue that when we situate narratives of HIV/AIDS in their broader social, political and historical context, it becomes apparent that journalists continue to participate in a broader project of stigmatizing the condition itself, as well as those living with it. For the purposes of this paper, I will rely on the definition of "stigma" first developed by Erving Goffman in Stigma: Notes on the Management of Spoiled Identity. (13) Goffman defines stigma as "an attribute that is deeply discrediting.' (14) In telling the stories of gay men who became HIV-positive beginning in the 1980s, journalists tended to construct their subjects as overly sexualized, deviant and pathological figures. To use the language giving rise to the title of Goffman's work, people living with HIV were framed as spoiled identities. (15) Second, I will argue that the Ottawa case study demonstrates that contemporary police practices, paired with stories told by journalists, continue to stigmatize HIV/AIDS itself, as well as those living with it. Third, I will survey legal reforms, such as expanding the contours of publication bans for individuals who are alleged to have failed to disclose their HIV-positive status prior to engaging in sexual activities. Ultimately, however, I conclude that imposing ethical duties on police and journalists may constitute a more useful approach in changing the ways in which HIV non-disclosure stories are told to members of the Canadian public.
TELLING STORIES OF HIV/AIDS: A BRIEF HISTORY
It is difficult to examine the recent HIV non-disclosure case from Ottawa without first situating the story in its broader social, political and historical context. To set the stage for the analysis that follows, it is useful to explore the ways that journalists covered the emergence of the HIV/AIDS epidemic in the early 1980s. In AIDS and its Metaphors, Susan Sontag argues that HIV/AIDS, as well as those living with it, came to be deeply stigmatized by society. (16) Metaphorically, HIV itself, as well as those who acquired the condition, denoted "pollution"--HIV/AIDS represented "polluted" blood, "polluted" persons and "polluted" interactions between those living with HIV and those who were not. In Illness as Metaphor, Sontag attempts to remove such meaning from illness and the ill, and in its place generate a more "truthful way of regarding illness," one that is "purified of, [and] most resistant to, metaphoric thinking." (17)
Metaphor, according to Aristotle and adopted by Sontag, "consists in giving [a] thing a name that belongs to something else." (18) The act of inscribing cultural meanings onto a thing--an object, a condition or a body--allows for the production of knowledge. In this way, "all thinking is interpretation" and, for this reason, humans cannot understand the world around them without metaphors. (19) Perhaps the most important aspect of the act of creating metaphors, however, is not the chosen metaphor itself, but rather the underlying regulatory and institutional regime that led to the selection of that particular metaphor in the first place. By and large, metaphors used in the interpretation of illness are punitive, isolating and based in fear. There is no single metaphor of HIV/AIDS. Rather, a series of metaphors are used to vilify suffering and may ultimately undermine a more evidence-based, purposeful approach to the lived realities of those living with HIV/AIDS. (20)
While there is much to appreciate about the work of Sontag, she often fails to identify the precise mechanisms through which metaphors of HIV/AIDS take shape in society. To look more closely at these mechanisms, it is important to assess the ways that journalists covered the emergence of the HIV/AIDS epidemic beginning in the early 1980s. In those early days, journalists tended to describe gay male sexual practices as entirely at odds with acceptable values in Anglo-American society. To use Sontag's language, these practices and identities were constructed as "polluted." A number of scholars have noted that journalists participated in the project of constructing gay men as overly sexualized, pathological figures who were responsible for their "polluted" states. For example, Simon Watney argues that the presence of HIV/AIDS among gay men is "generally perceived not as accidental but as a symbolic extension of some imagined inner essence of being, manifesting itself as disease." (21) Similarly, Michael A Smyth explains that the "specter of the pathological, predatory, sexually violent deviant played a significant role in shaping discourse about homosexuality," (22) while Gregory M Herek notes the pervasive construction of gay men as "pathological, predatory, and compulsively promiscuous." (23)
A close reading of stories from the early 1980s demonstrates that journalists covering the emergence of the HIV/AIDS epidemic often conveyed the idea that, at its core, HIV/AIDS was a gay illness. For example, the first story about HIV/AIDS recounted by NBC News aired in June 1982. The story opened with Tom Brokaw framing the HIV/AIDS epidemic as one that was limited to a discrete category of individuals: overly sexualized, promiscuous gay men. Brokaw stated: "Scientists at the National Center for Disease Control in Atlanta today released the results of a study, which shows that the lifestyle of some male homosexuals has...