Barry Adam
Disclosure as HIV Prevention
The construction of non-disclosure in the criminal justice system is grounded, at least implicitly, on a deterrence theory that holds that people will make rational assessments of costs and benefits of their actions. It is important to investigate the day-to-day practices and deliberations that do in fact go into decisions to disclose. Close examination of everyday disclosure decisions shows a range of incommensurable rationalities such as personal ethics and morality, the fear of rejection, degree of intimacy between partners, the influence of significant others, and capacity for self-assertion, as factors in disclosure dynamics. This in turn leads to ways in which notions of responsibility figure in the reflections of people living with HIV. The gap between these everyday practices and situations on the one hand and the rational deterrence presumptions of criminal justice proceedings on the other points towards ways in which the criminalization of HIV may work at cross-purposes to effective HIV prevention.

Edwin Bernard
Building Persuasive Evidence: How can the Social Sciences Support Global Anti-Criminalisation Advocacy?
Persuasive evidence of the (unintended) harmful effects of HIV criminalisation to public health and human rights is central to advocating for changes in laws or policies relating to HIV and the criminal law. However, not all evidence is equally persuasive and may be jurisdiction or population dependant. In addition, recently two influential bodies – the Supreme Court of Canada and the Norwegian Law Commission – have dismissed such evidence as not persuasive enough.

In order to better understand how advocates have used such evidence to persuade policymakers and/or criminal justice system actors to repeal, reform and/or create improved outcomes for public health and/or human rights, leading advocates in four countries where such positive changes have recently occurred (Denmark; England & Wales; Iowa, United States; and Switzerland) were sent an email questionnaire in February 2013 that asked the following questions?

• What evidence did you use to persuade policymakers and/or criminal justice system actors to make the positive change?
• How persuasive were general negative public health arguments (e.g. added disincentive to know or disclose HIV status, false sense of security regarding responsibility for HIV prevention) compared with more focused negative public health arguments (e.g. impact on healthcare workers’ ability to effectively counsel patients)?
• How persuasive were general negative human rights arguments (e.g. singling out people with HIV for unusually harsh punishment) compared with more focused negative human rights arguments (e.g. police or media not keeping individual complainant’s confidentiality)?
• Were there gaps in the evidence for which you wished you had data? If so, what were they?
• Did any evidence ‘backfire’ and/or result in unexpected or unwanted outcomes?

Their responses will be presented and analysed in a discussion paper to be distributed prior to the workshop.

Glenn Betteridge
Responding to Elevated HIV Transmission Risk Behaviours: Key Components and Approaches of Public Health Guidelines and Interventions
Public health law has been conceptualized as an alternative to the criminal law to address problematic non-disclosure and HIV risk behaviours. In many high-income settings public health law imposes duties upon and also empowers certain professionals to take action to protect the public’s health, including HIV case management. In reality, here is a paucity of empirical literature examining the use of public health powers and their effects on the behaviour of people subject to such powers. The presentation will summarize an environmental scan of public health guidelines from 9 high-income jurisdictions (within Australia; Canada; USA) and national policy (Australia; Canada), and 3 key informant interviews. I will provide an overview of key components and approaches of public health guidelines to manage unwilling/unable, and summarize key informant interviews focusing on policy development, design and implementation, as well as suggestions elicited. The presentation is intended to promote thinking and discussion about the development of public health guidelines and interventions to address unwilling/unable, including the role of empirical research and evaluation.

Liviana Calzavara
Moving Away from the Public Health Rhetoric: Canadian Voices and Perspectives on Criminalization of HIV Non-disclosure to Sexual Partners
The focus of this paper is to report on what Canadians, service providers, and the communities most affected think about the current law and its implications; and highlight its impact on HIV testing, disclosure, stigmatization, and risk to overall public health. The paper argues that the current public health debate is creating unproductive tensions, and suggests that a human rights development approach may be more suitable given the Canadian context and voices.

Joanne Csete
Sex, drugs and minimalist visions: the legacy of HIV for the human rights enterprise
Many expert analyses in the academic literature suggest that the global struggle against HIV stands as a rare example of a human rights victory in a period of history when such victories are rare. Analysts see the HIV struggle as having energized the emerging discipline and practice of health and human rights, and also see human rights-centered advocacy as a crucial engine of the HIV struggle. But the current state of the epidemic – most intransigent where it is linked to misapplication of criminal law around still taboo facets of human behavior and to deep poverty – reflects larger failures in the human rights enterprise with respect to health and more broadly. What progress has been made in combating the inherent irrationality with which policy-makers approach sex and drugs, and does a human rights framework help? What are the best prospects for strengthening an anti-poverty focus at a time when anti-poverty efforts are compromised, including by the ground they have ceded to security and counter-terrorism interests?

Catherine Dodds
Keeping Confidence: HIV and the Criminal Law from Service Provider Perspectives
This paper presents qualitative research findings about how perceptions of criminal prosecutions for the transmission of HIV interact with the provision of high-quality HIV health and social care in England and Wales. Seven focus groups were undertaken with a total of 75 diverse professionals working in clinical and community-based services for people with HIV. We found that participants’ understanding of the law in this area is varied, with many knowing the basic requirements for a prosecution, yet being very uncertain about communicating key details with those using their service. The way that participants approached the topic with service users was influenced by their personal views on individual and shared responsibility for health, their concerns about professional liability, and their degree of trust in non-coercive health promotion approaches to managing public health. These findings have direct implications for the development and delivery of legal resources to support HIV service providers, and they also afford an opportunity for comparison with similar work undertaken elsewhere.

Martin French
The Viropolitics of HIV Testing, Counseling and Criminalization in Tennessee
This paper presents empirical research from a study designed to qualitatively explore developments now taking place in the ‘medico-legal borderland’. Focusing in on one case-study, this paper will present research with providers of voluntary testing and counseling (VTC) for HIV from Tennessee, USA. According to emerging data, Tennessee—one of the 17 states making up the American South, and the epicenter of the contemporary American HIV epidemic—lead all jurisdictions in the United States (US) with 48 prosecutions of people for HIV-specific criminal offenses during the period 2008-2010 (HRW 2010: 17). With reference to these prosecutions, this paper will explore the impact(s) of such criminal justice activities upon public health practice, suggesting that the micro-level interactional order of VTC for HIV is significantly impacted by macro-level structures, like the criminal law. Furthermore, by advancing the concept of “viropolitics,” this paper intervenes in literature on “biopolitics,” particularly biopolitical theorizations of VTC for HIV. In so doing, it foregrounds mundane elements of VTC for HIV that commonly lie—in biopolitical theorizations—at the analytic margin.

Carol Galletly and Zita Lazzarini
Advocacy, Research, and the Criminalization of HIV Exposure
Research and advocacy work on the criminalization of HIV exposure involves professionals who approach the issue from a variety of different perspectives. Their beliefs about the purpose of research and its value and about what constitutes evidence and the legitimacy of its various forms may differ significantly. Potential differences in perspectives and beliefs may, in turn, limit possibilities for what each can accomplish, whether individually or together. The purpose of this paper is to begin to explore advocates’ and researchers’ orientation to research on criminalization–how they understand the possibilities for such research, whether there are differences in their alignment to it, and what role they believe research might play in social change in this area–through the candid responses of a group of researchers and advocates to open-ended questions on their work in the criminalization of HIV exposure. Participants will also be asked to describe the challenges and successes they encounter working with their researcher/advocate partners.

Daniel Grace
Legislative Epidemics: The Role of Model Law in the Transnational Trend to Criminalize HIV Transmission
HIV-related laws are being created transnationally though the use of omnibus HIV model laws. A model law is a particular kind of regulatory text designed to be taken, modified and used by stakeholders in the creation of state laws. Because they are already framed in legislative language, model laws are worded in ways that can be expeditiously translated into state law. A constellation of legislative actors have worked to critique aspects of a United States Agency for International Development (USAID) funded Model Law, known as the USAID/Action for West African Region (AWARE) Model Law, or N’djamena Model Law. This “harmonizing” text has led to the rapid spread of HIV/AIDS laws, including the criminalization of HIV transmission, across at least 15 countries in West and Central African between 2005-2010. Mapping the origin and uptake of this pre-operative guidance text is optimally achieved through a sustained analytic commentary on the coordinating function of the institutional genre of best practice. Many of the policy actors critiquing this USAID-funded initiative have been engaged in the development of alternative HIV-related model laws and the shaping of a global anti-criminalization discourse. This project was guided by the critical research strategy of institutional ethnography. Legislative processes were made visible through participant observation, archival research, textual analysis and informant interviews with national and international stakeholders (n=32).

Trevor Hoppe
Interpreting Disparate Outcomes in Michigan Trial Court HIV Nondisclosure Convictions: The Modifying Effect of the Complainant’s Gender
While analyses of widely reported criminal HIV disclosure cases have often reflected trends in American criminal justice in that many feature black male defendants, no systematic study has analyzed whether HIV disclosure laws are unequally applied to minority populations. Based on analysis of 58 felony disclosure cases in Michigan (95% of all known convictions under the law between 1992 and 2010), I argue that there is evidence that these laws disproportionately impact communities. However, rather than simply the product of racism or sexism, conviction data suggests a more complex picture that is not readily explained. For example, while the proportion of black men among the convicted is approximately equal to that of the broader HIV-positive population in Michigan, accounting for the gender of the complainant in the case paints a different picture. Black male defendants with female complainants are widely overrepresented among the convictions as compared to the larger HIV-positive population, while white men with male complainants are widely underrepresented. These patterns are not readily explained by univariate models of discrimination. While further study is necessary to fully understand the factors driving these unequal outcomes, I propose that these differences may in fact be produced by differences among potential complainants rather than differences among defendants – namely, that some potential complainants may more readily call the police to report a partner’s non-disclosure than others.

Zita Lazzarini and Carol Galletly
A critical barrier to the advancement of research on the criminalization of HIV exposure in the United States: The problem of sampling within US public health departments
Critics of laws that criminalize HIV infection have expressed concern that they could negatively effect public health efforts to reach persons living with HIV or those at risk of HIV infection. Researchers in Canada have described several effects: confusion over the meaning of “significant risk” in Canadian law; “chilling” the relationship of openness and trust between public health workers and clients; and concern among public health workers that they must work “with an eye to the law.” Research in the US to look for similar effects has been complicated by structural differences among US state public health systems and variation of criminal laws by state. Moreover, it has been 20 years since US researchers systematically examined the ways that public health departments respond to persons who may knowingly expose others to HIV. We propose an approach that addresses both of these questions by systematically sampling states classified by governance structure of public health systems; identifying informants at state and local levels most likely to be familiar with persons who may knowingly expose others to HIV; exploring the ways those informants interpret criminal laws, their responsibilities to their clients, their institutions, and the public; the relationship between public health and criminal justice systems; and the implications of using the concept of “persons who may knowingly expose others to HIV” to describe people living with HIV in the context of the criminal law.

Patrick O’Byrne
Counselling about HIV-Status Disclosure: Nursing Practice or Law Enforcement? A Foucauldian-Based Public Health Reflection
Recently, focus groups and qualitative interviews with nurses who provide frontline care for persons living with HIV (PHAs) highlighted the contentiousness surrounding the seemingly innocuous activity of counselling patients about HIV-status disclosure, henceforth referred to as HIV disclosure counselling (O’Byrne & Gagnon 2012; Mykhalovskiy 2012). These empirical studies highlighted that while some nurses felt they should instruct patients to disclose their HIV-positive status if HIV transmission is possible, other nurses were equally adamant that such counselling was outside of the scope of nursing practice (Mykhalovskiy 2012, O’Byrne & Gagnon 2012). A review of these opposing perceptions about HIV disclosure counselling, including an examination of the empirical evidence which supports each point, revealed that the dichotomous arguments made by these nurses needed to be nuanced. The empirical evidence about HIV-status disclosure neither supported nor refuted either of these assertions; rather, it substantiated parts of each. The development of a nuanced approach toward HIV disclosure counselling is the focus of this paper. To create this understanding, both empirical and theoretical work is used. First, empirical results about HIV-status disclosure, or lack therefore, and HIV transmission is presented; as part of this, Marks and Crepaz’s (2001) HIV disclosure / HIV exposure framework is examined. New empirical data from a qualitative research study involving PHAs is also presented. Second, the work of Michel Foucault on training and pastoral power is drawn from. The outcome is a more nuanced and robust understanding about the interrelationships between HIV disclosure counselling and nursing practice, and a final interpretation about what this understanding means for public health practice.

Barbara Ross
Public Health Management of U2 Clients – “the Calgary Model”
While most persons infected with HIV take precautions to prevent further transmission, there are a small number of Albertans who engage in behaviours that place others at risk of acquiring HIV, despite having been advised by Public Health of their responsibilities. These recalcitrant or U2 (unwilling & unable) individuals may have difficulty complying with the Public Health Act because of complex issues related to underlying mental and physical illness or disability, history of abuse, chronic homelessness and/or substance use. These individuals present a significant management challenge to public health professionals in balancing the rights of the individual while protecting the public.
In 2003, the Federal /Provincial /Territorial Advisory Committee (FPTA) on HIV/AIDS organized a roundtable of experts from diverse backgrounds to discuss the risk of HIV transmission related to behaviours, assess different strategies to address the issue of non-disclosure and advise the FPTA Committee on HIV/AIDS. Based on the recommendations from the Expert Working Group, the Public Health Agency of Canada identified the framework initiated by the former Calgary Health Region as the best practice in addressing public health risk posed by persons who fail to disclose their HIV status.
The “Calgary Model” was developed to establish a consistent protocol for the public health management of HIV positive persons who are reported to the Medical Officer of Health as putting others at risk. Based on the principles of harm reduction, the determinates of health that influence risk behaviours are addressed through the use of a comprehensive assessment and intervention process.

Chris Sanders
Confidentiality and Documentary Practices during HIV Post-Test Counseling: Impact of Criminalization on Public Health Nurses’ Work
In Ontario in recent years, there has been a growing number of criminal HIV non-disclosure cases where public health client records have been subpoenaed to aid in police investigations and/or to be presented in court as evidence against HIV-positive defendants. This raises provocative questions about the limits of confidentiality in public health settings following the criminalization of HIV non-disclosure. In this presentation, I discuss ways that public health nurses control information about the limits of confidentiality at the outset of counseling and the extent to which they guard client privacy through documentation practices. I draw insight from Institutional Ethnography in discussing how nurses’ inscription styles are guided in part by the possibility that their notes may be “recontextualized” for use in criminal justice settings. While some nurses report striving to record as much detail as possible, others endeavor to guard against recontextualization by remaining intentionally vague and strategically ambivalent. I argue that this is an example of “medico-legal” (Timmermans and Gabe 2003) relations and of the subtle impact that criminal law has on public health practices. This research is based on qualitative interviews; it contributes to public health literature on ethical practice and sociological literature exploring the transfer of information across institutional settings.

Laurel Sprague, Sean Strub, and Robert Suttle
The Reasonable Person Standard: HIV-specific Criminal Laws and the Fear of Disclosing One’s Status to Sexual Partners and Accessing HIV Testing and Treatment
Public health concerns about HIV criminalisation focus on its potential to deter HIV testing, disclosure of one’s positive HIV status, and access to treatment. However, the complex factors involved in health-seeking behavior make it challenging to specify the linkages between HIV criminalisation and poor health outcomes. In mid-2012, to better understand HIV criminalization from the perspectives of people living with, and affected by, HIV, we conducted a web-based survey, developed by PLHIV through a participatory, community-driven research process, with IRB approval through Eastern Michigan University. The 3030 respondents (72% PLHIV) from Canada (2.5%) and the U.S. (97.5%) indicated surprisingly high support for the propositions that it was at least somewhat reasonable for people to avoid HIV testing (49% agreement), disclosure (49% agreement), and treatment (42% agreement) because of fears of criminalisation. In addition, only three-quarters (76%) were certain that they would not counsel someone to avoid testing while seven percent indicated that they would or possibly would counsel avoidance because of HIV criminalisation. We seek to shed light on the linkages between health-avoidance and HIV criminalisation through examining these responses by demographic variables, supported by qualitative analysis of respondents’ open-ended comments about criminalisation risks. While these data cannot provide direct cause and effect relationships, they can highlight the levels of legitimacy for avoiding testing, disclosure, and care within different communities and the vulnerabilities which different communities must navigate because of HIV-specific laws; vulnerabilities that can make it reasonable to avoid the health behaviors that can save one’s life.

Roberta K. Timothy
The Impact of Criminalization of Non-disclosure of HIV Positive Status on Racialized Communities
In Canada, since the late 80’s, there have been over 70 convictions and more than 90 HIV-positive people have been on trial for having unprotected sex, even when no HIV transmission occurred (Mykhalovskiy, 2010). Notably, the Cuerrier decision (1998) by the Supreme Court of Canada became a landmark case that ruled that a person living with HIV who does not disclose his or her HIV- positive status and exposes another person to a “significant risk” of HIV transmission, could be found guilty of aggravated assault (Symington, 2009). The majority of cases of persons convicted under HIV criminalization legislation in Canada were African/Black men (ACCHO, 2010). This paper will examine the impact of criminalization of non-disclosure of HIV positive African/Black people living with HIV from a historical and contemporary transnational perspective. This paper utilizes an intersectional anti-oppression, social determinant of health approach to examine African/Black communities affected by HIV/AIDS in the greater Toronto area as well as its international impact. Specifically, this paper will discuss my research findings on the experiences and responses to the impact of criminalization of non-disclosure of HIV positive status and increased HIV stigma on African Diasporic communities from the perspectives of African/Black women and men living with HIV; service providers (therapist, case workers, social workers) and agency directors working in the HIV Sector; and the legal sector (politicians, lawyers and\or judges). This paper is relevant to the conferences themes as it offers a critical look at an anti-oppression/anti-colonial analysis on criminalization of non-disclosure of HIV positive status and the impact on the health of African/Black communities.