INTRODUCTION

ONE
Moral Panic, HIV and Fictions of Responsibility

TWO
Criminal Law Joins the Moral Barricades

THREE
The Difficult Question: Controlling Social (Sexual) Risk?

CONCLUSION

BIBLIOGRAPHY

APPENDIX ONE

APPENDIX TWO

INTRODUCTION

"This is a terrifying condition. There is no point in mincing words."

Hon. Justice Michael Kirby1

This thesis employs two analytical approaches for the critiquing of HIV legal discourse: first, the work of Stanley Cohen on `moral panic' has been drawn upon substantially; and second, the framework of the Self-Other dichotomy has been employed. Both these frameworks are highly relevant to the HIV crisis, and provide important tools in understanding the process of criminalisation which has occurred. An interdisciplinary approach has been taken in the writing of this thesis. Political, criminological, sociological and anthropological works have been referred to, as well as judicial authority and legal policy commentary.

Chapter One explores the phenomena of 'moral panic' and the Self-Other dichotomy, and their relationship to the criminalisation of HIV transmission. It will examine the current HIV moral panic and the representational creation of HIV myths and metaphors, with reference to the work of Susan Sontag.3 It will be argued that the HIV crisis has been characterised by the deployment of guilt rhetoric and the adoption of moral narrative into criminal law. The historical example of the syphilis epidemic will be discussed as an illustration of the intersection between moral panic and policy.

Chapter Two then examines and assesses the specific legislative innovations which have arisen in Australia in response to the dilemma of HIV transmission. It is argued that the influence of moral panic on the making of public policy is clearly illustrated in the case of the HIV crisis.

Chapter Three then addresses the difficult question of the place of law in controlling social, and particularly sexual, risk behaviour. Human sexuality is a site of considerable complexity, and this thesis will contend that the difficult task of persuading people to make changes in sexual behaviour is one to which the criminal law is largely ill-suited. This thesis argues, drawing on liberal philosophy,4 that it is essential to recognise the autonomy and free agency of those entering into sexual interactions. Notwithstanding the difficulties associated with sexual power inequities, as discussed by eminent feminist scholars including Naffine, Smart, Vance, Rubin, MacKinnon and Dworkin,5 this thesis concludes that consent given in this context must be valued. Paternalistic denials of the ability to consent are, in this context, inappropriate. This thesis concludes that to date, discourse with respect to the prevention of HIV transmission has been dominated by an unuseful and unproductive predator-victim dichotomy, based on the popular HIV mythology. This discourse has led to a criminal framework whose contributions are limited at best, and harmful at worst. A reassessment of concepts of risk, in terms of mutual responsibility, is necessary before effective behaviour modification will be encouraged.

ONE

"Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people;... Sometimes the panic passes over and is forgotten, except in folk-lore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself."

Stanley Cohen6

Moral Panic, Self and Other

Cohen's analytical framework is a useful one for the purposes of this thesis. Essentially, Cohen performs an exercise in the unmasking of constructions. The value of his approach is that it enables the discovery of the otherwise invisible process of moral manufacturing, enhancing our understanding of the way in which social responses are arrived at, and enabling us to recognise the participant social institutions which tend to be complicit in the process. As Cohen demonstrates, the legal system is one such institution which acts in complicity and which is highly susceptible to the forces of the moral panic.

The Self-Other framework helps to further illuminate Cohen's thesis. This dyad has been noted in many contexts, notably anthropological, to describe the process whereby individuals or groups engage in a definition of self-identity which is in contradistinction to, and to the exclusion of, another. "Every version of an 'other', wherever it is found, is also a construction of a 'self'".8 Self and Other become "understood in reified, essentialist terms, and each is defined by its difference from the other"9 - differences, both real and imagined, are exaggerated, whilst similarities are ignored. Read with Cohen's work, it is clear that the process of moral panic involves the identification of, and reaction to, a socially threatening Other.

The processes of law-making are certainly not immune from narratives of moral panic and Otherness. Indeed, panic and moralism have often exercised a profound influence over the making of public policy and law. Such an assertion admittedly conflicts with legal positivist claims as to the neutrality, objectivity and rationality of the legal system. However, an impressive bulk of feminist legal discourse now exists to challenge seriously these claims. Feminist legal scholars, including Graycar and Morgan, Naffine, Davies, Neave and Smart,10 have unmasked the law's alleged indifference to particularities of gender, race, culture, religion and sexuality. I do not propose to reproduce, or even do justice, to that material here. What I wish to extract from this body of literature is the concept that the law engages in "normalising discourse",11 in which norms are constructed against which behaviours are then measured for their degrees of deviancy. The processes of law-making are subjective, constitutive, and founded on invisible assumptions.

Public health as a site of moral panic

Rating high on the list of social priorities protected by the mechanisms of moral panic and the Self-Other dyad is that of public health. Cindy Patton labels the social obsession with health, "germphobia".12 She argues that society's "profound cultural fear of difference and death" produces a "unique community effort at social cleansing".13 Furthermore, inherent in the sickness-health dualism is the implied blameworthiness of the sick.14 Such a concept is socially useful: it gives the sick a sense that their suffering is not without purpose, and it gives the well a sense of safety.15 We are reminded here of Mary Douglas's work, Purity and Danger, in which she describes society's treatment of pollution: "dirt offends against order", and a "polluting person is always in the wrong".16 As Susan Sontag illustrates, an infected body is automatically a "defiled" body.17

Of all diseases, sexually transmissible ones invoke the greatest social panic of all. In these cases, germs (already socially detested) are combined with the other great Western neurosis: sex. Here, germphobia meets "erotophobia", which Patton defines as "the terrifying, irrational reaction to the erotic".18 Germphobia and erotophobia have already conjoined in Western history. The extraordinary panic prompted by the syphilis epidemic, discussed below, makes it clear that sex, germs and death are a highly emotive combination in Western society.

Syphilis as historical example

The syphilis example is a resounding demonstration of the dangerously close relationship between emotive moral discourse and public policy. It provides an important historical lesson that "fear of disease... powerfully influences medical approaches and public health policy".19 It is also a clear illustration of the way in which moral panic can lead to inappropriate medical and legal responses founded on prejudice and moralism rather than on considered scientific principles.

Medical debates about syphilis and public sanitation have recurringly become debates about sexuality and prostitution. In nineteenth century Britain, syphilis was viewed as the "family poison".20 Prostitution was declared "the greatest of our social evils",21 and prostitutes were constructed as the guilty Other, bearing collective responsibility for the epidemic. Moral discourse soon became translated into legal discourse with the enactment of the Contagious Diseases Act 1864 (UK). This legislation, and its two successors (lasting till 1886), subjected 'common prostitutes' in garrison towns to a regime of surveillance, compulsory examinations, and to involuntary confinement in 'lock hospitals' for up to three months.22 Significantly, the clients of prostitutes were not subjected to either scrutiny or policing. The diseased and deviant prostitute Other was blamed and policed, whilst the heterosexual male Self was left to his own 'indulgences'. These laws were imitated in Australia with heightened severity and application, extending the 'lock hospital' model to the broader civilian population, not just to the garrison towns.23 This model remained in existence in Australia until well into the 1900's. At no time during the life of this legislative scheme did the suggestion of visiting responsibility upon the male clients of prostitutes ever gain any momentum.24

A similar conflation of moral sexual ethics and public policy emerged in America during World War One over the sexual health of the nation's soldiers. Once again ignorance and fear dominated in policy debates, and blame focussed on prostitution. Propaganda campaigns were launched, declaring, for example, that a "German bullet is cleaner than a whore".25 The guiding principle adopted in the disease containment strategy was that 'good morals = good health'.26 Over thirty thousand prostitutes were detained and quarantined during the war in order to protect the public health and the national war effort.27 No attempts were made to provide responsible education or to equip soldiers with means of disease prevention, although a painful post-exposure disinfectant treatment, dispensed by injection into the urethra and no doubt intended to act as a disincentive against further sexual (mis)conduct, was available.28 As Allan Brandt has found, none of these measures were at all effective in reducing the rates of infection.29

The pertinence for the current HIV pandemic of the lessons taught by the syphilis epidemics must not be overlooked. "Let us not be like the Bourbons, learning nothing from history, forever condemned to repeat its mistakes", warns Justice Michael Kirby.30 It is the contention of this thesis that the legal responses to the HIV pandemic have been inappropriately driven by similar forces of moral panic.

A Parallel: the HIV Moral Panic

HIV is the most recent sexually transmitted disease to create a moral panic. Brandt points to a number of similarities between the HIV and syphilis epidemics: they both provoke issues relating to the nature and risks of sexuality; they both involve conflicts between individual rights and the protection of public health; and they both provoke fears of contagion, transmission, stigmatisation, and the undermining of civil liberties.31 They have also both been perceived as threats of assault on sexual mores, though the particular mores at stake seem to have shifted from the marital union to the heterosexual union. And in both cases, the social response has followed a Cohenesque pattern of moral panic, with remarkably similar protagonists: the disease; the guilty risk-bearing Other; the innocent victim Self; and the social solution, translating moral discourse into legal policy, in which the Other is 'dealt with', thereby protecting the Self from further risk.

The sudden advent of the HIV pandemic provoked a dangerous combination of fear, panic and ignorance in the largely epidemic-free Western world.32 An infectious, destructive and fatal disease was at large, with no 'magic bullet'33 available. In a manner familiar from the times of previous outbreaks of disease (including the plague, cholera, leprosy and syphilis), the arrival of HIV found society rising to a crescendo of hysteria. Initial medical knowledge with respect to the means of transmission of the virus was limited, leaving room for wildly erroneous speculation on possible forms of casual transmission and the creation of a new chapter in popular mythology.

There was however a unique characteristic to this disease, the distorting effects of which cannot be overstated. HIV first came to world's attention in July 1981, when it was reported that a total of six gay men had recently died in Los Angeles, USA, from PCP, a rare type of pneumonia.34 The US Centre for Disease Control soon named the new disease Gay Related Immunodeficiency Syndrome (GRIDS), whilst the mainstream media had its own names: 'gay pneumonia', 'gay cancer', 'gay plague'.35 In fact, as medical science soon discovered, the syndrome is an entirely non-discriminating one, although it took two years before the disease was more appropriately renamed Acquired Immune Deficiency Syndrome (AIDS).

There is no epidemiological basis for claiming that HIV is a gay disease. On a world scale, in fact, the disease has predominantly been transmitted heterosexually. The World Health Organisation reports that 70% of infections occur through heterosexual contact, whilst only 15% occur through gay male sex, 7% through intravenous (IV) drug use, and 5% through the use of blood and blood products.36 Although gay and bisexual men, some of them IV drug users, make up 83% of the total infections recorded in Australia,37 care must be taken with the interpretation of these statistics. As varying international experiences illustrate, there is nothing inherently `gay' about HIV. Yet the perception of HIV as a disease exclusive to the homosexual male has persisted. Indeed, as will be explored below, the popular homosexualisation of HIV has conveniently allowed the construction of a discourse, based on metaphor and myth, of the deviant gay Other.

Representation, Metaphor and Guilt Rhetoric

The writing of HIV metaphors has been widely used in the consolidation of the HIV moral panic. Representation, through language and metaphor, forms the basis of constructed 'truth' in the post-structuralist sense: it bestows social meaning and informs perceptions, beliefs and actions.38 The representation of HIV in various metaphorical roles has thus largely influenced the construction of the HIV 'truth'. These metaphors have ranged through themes of invasion, defilement and contamination, plague, personified killer, and punishment.39 In terms of moral panic and social response, I would argue that it is the metaphor of HIV as punishment which has undoubtedly reverberated longest and loudest.

The guilt and punishment metaphor has had a profound influence on the construction of the HIV narrative, and has formed the basis of fictions of responsibility. Guilt rhetoric forms the central premise of extreme right religio-moral discourse on HIV, in which gay men are represented as "disease carrying deviants" and "sex-crazed degenerates".40 Consider, for example, the following petition distributed by Christian Family Renewal in America:

You may soon fall victim to an irreversible fatal disease! And it won't be your fault! But, you'll have to pay the terrible price anyway because of the promiscuous homosexuals, whose lustful lifestyles have created this uncontrollable incurable plague.41

...gay men's bodies have been worn out by too much sex, drugs, previous infections, cheeseburger dinners, quiche, and fast-lane life.42

Guilt rhetoric has been highly convenient for those who would wish to label HIV a disease of Otherness. Whether by offending the 'laws' of God, nature, science, moral order or bodily propriety, people living with HIV/AIDS (PLWHAs)44 have been judged, ex parte, as the guilty Other, "victims of their own desire".45 For the sake of ease, this group has apparently been subsumed into a general category of 'queer', with those non-gay members being accorded honorary queer status. As Cindy Patton explains, "the insistence that AIDS is somehow a mark of perversion transforms infected persons into 'queers', regardless of their exposure route..."46 The existence of those relatively small at-risk sections of the heterosexual population (IV drug users, Africans) has "only broadened and spelled out the categories of denial for the 'general public'".47

Guilt, Innocence and the Comfort Zone

The concept of guilty victims imputes as a necessary corollary the existence of innocent ones. Rhetoric of the innocence/guilt dichotomy has found its way into many current forums in relation to HIV, some more 'official' than others. Predictably, it has been paraded by the moral majority, which has made much mileage of the images of the innocent wife/child at risk. It has also, however, found its way onto the state-sanctioned agenda. In October 1991 the NSW Parliament released a report entitled Medically Acquired HIV.48 This report concluded that special financial assistance ought to be given to those persons who had acquired HIV through medical means, primarily transfusions of 'tainted blood', without considering the giving of financial assistance to any other class of PLWHAs or their families. In so limiting their scope of inquiry, the NSW Parliamentary Standing Committee gave legitimacy to the innocence/guilt dichotomy, since the Inquiry was premised on the assumption that an 'innocent' class of victims exists, and that it is more "morally worthy"49 of assistance and sympathy than the 'guilty'. As Hurley observed, this report:

effectively establishes a hygienics of innocence and guilt. Innocent victims become stigmatic martyrs of the anal. It's a phantasmagoria of social anxiety.50

a cordon sanitaire... an imaginary margin of safety.. (which) protects the clean from the infected and organises the field of infection in the reassuring manner of predictable cause and effect.53

The comfort zone is a dangerous thing. Those who believe that they are part of the safe Self, nestled in the comfort of security, are the most at risk. As Waldby warns, imaginary margins of safety which are based on "naturalised notions of sexual identity" are problematic.54 The HIV virus does not, of course, respect categorised concepts of sexual identity. Yet, as Goldstein states,

We would rather rely on stigma to protect us than on precautions that would force us to acknowledge that AIDS is not only among us, but of us.55

Guilt Narrative and Legal Discourse

It is the contention of this thesis that a translation from moral narrative to legal discourse has taken place in response to the HIV pandemic. The recruitment of the criminal law in response to the HIV crisis is a direct product of panic narrative. The criminal law's involvement is based upon a key assumption of HIV as a disease 'owned' by the Other,57 who then becomes the bearer of sole responsibility and culpability for its transmission. Nicki Greenberg describes this framework as one positing inflexible sexual roles of "risk creator and risk receiver".58 She illustrates this by using a dialogue between a hypothetical sex-worker and her client, in which the former explains that:

Because all control of risk in this encounter is assigned to me as the HIV suspect, you, the passive 'victim' are then conceptualised as having no control or agency in the encounter.59

TWO

To date the criminal laws available for use against HIV-positive persons who expose others to infection, or cause others to become infected, are in a state of multiplicity and confusion. A Model Criminal Code has been written by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) but has not been enacted as yet.61 In some Australian jurisdictions, HIV-specific legislation has been introduced, making it an offence to cause another to contract a "grievous bodily disease", a "serious disease" or a "very serious disease".62 Prosecutors in these and other jurisdictions have also relied on pre-existing offences of recklessly endangering life, assault occasioning grievous bodily harm, and public nuisance, with varying success. These alternatives have been analysed in great detail elsewhere,63 and I do not propose to restate those findings here. Leaving aside the fundamental argument on the desirability of invoking the criminal law in disease prevention strategy (to be dealt with in Chapter 3), let us assess the state of the criminal law's current alternatives.

There has been a growing trend toward the use of specific disease transmission offences in Australian jurisdictions. The MCCOC Discussion Paper on Non-Fatal Offences, released in 1996, adopted such a model, creating a separate endangerment offence for the transmission of serious diseases.64 Given this trend, it is appropriate that this thesis concentrate on an analysis of the issues raised by specific transmission laws. For the purposes of discussion, the provisions of the 1996 Model Criminal Code will be focussed on. However, the following comments are relevant beyond the scope of the Model Code project, since similar fundamental questions will always arise under transmission laws.

The Model Criminal Code: A Model Answer?

The provisions suggested in the MCCOC 1996 Discussion Paper would make it an offence to place another in danger of contracting a serious disease (clearly intended to include HIV), either with the intention that the person contract the disease, or with recklessness thereto. It is to be taken that a person places another in such danger if there is exposure to an appreciable risk of transmission, even if that risk is low.65

This writer considers that there are three significant problems with the suggested provisions: first, the failure to incorporate allowance for the potential infectee's voluntary acceptance of risk; second, the failure to mention the use of protective measures; and third, the inclusion of recklessness as a source of liability.

When 'Yes' Means Nothing: The (Ir)Relevance of Consent

The Model Criminal Code provisions do not address the significant issue of consent. The voluntary acceptance of a risk of infection, given by a person who has been fully informed of the risk, is a defence to many of the public health summary offences of disease exposure and/or infection.66 However under the Code it is doubtful that the consent of the person exposed/infected would be treated as in any way relevant to the act of endangerment, assuming that consistency with the criminal laws of assault is maintained.

The criminal law does not allow persons to consent to the infliction of actual bodily harm without good reason, save in a collection of judicially recognised exceptions.67 These can be viewed as relating principally to activities involving "manly diversions",68 including sporting contests,69 boxing,70 and "horseplay",71 but the class also includes such other things as surgery and lawful chastisement. 'Good reasons' are only those which are consistent with the public interest.72

Bodily Autonomy and Public Policy

Questions of consent and "bodily autonomy"73 reach to the core of legal policy. At odds are the conflicting principles of libertarianism and legal moralism. Libertarianism, as articulated by John Stuart Mill, promotes the individual's right to freedom of choice. Mill's harm principle requires respect for individual autonomy and recognition of the capacity of individuals as freely acting agents, to the extent that individual behaviour does not threaten harm to others.74 Where no such harm is threatened, states Mill, the state has no business in restricting liberty. In the context of sexuality, it could be said that Mill's principle demands the recognition of the individual's "integrity as a sexual agent".75

In contrast, proponents of legal moralism, such as Lord Devlin, state that laws exist to prevent the commission of acts which would be antithetical to the public good. 76 Legal moralism assumes the existence of intrinsic wrongs, rejects any distinction between public and private moralities, and assumes the paternalistic right of the state to prevent immoral wrongs by coercive means. It is legal moralism which mandates the wearing of seat belts whilst driving, which prevents the practice of euthanasia, and which dictates the inability of the individual to consent to most forms of actual bodily harm. In these cases, the state deems it legitimate to override individual autonomy in the interests of public policy.

Assessing the relevance of consent in assault laws thus requires a judicial balancing act between these two principles, an exercise which involves the making of highly subjective judgements on the nature of the 'public interest' and the likely identity of those activities which are to contravene it. In other words, courts engage in evaluating the acceptability of certain risk-taking behaviour. The result of this exercise has been that 'manly diversions' of a sporting nature have been deemed acceptable, despite the significant risk that a game of football may leave one with a permanent spinal injury, or that a boxing match may inflict permanent and devastating brain damage. Meanwhile, for example, private recreational manly pursuits of a sado-masochistic nature have been deemed to be risk-taking behaviour inconsistent with the public interest, according to the decision in R v Brown.77 In that case, the Lords took the opinion that "the satisfaction of a sado-masochistic libido does not constitute a good reason"78, and the consents given freely by all participants were considered to be "dubious or worthless" by Lord Templeman.79

The question relevant to this thesis then is whether an individual's choice to voluntarily expose him/herself to the risk of HIV transmission so offends the public interest as to render that choice worthless. The tradition of the criminal law is squarely based in legal moralism, as cases such as R v Brown resoundingly demonstrate, and if judicially tested, the weight of authority would probably continue this tradition with respect to transmission of HIV. Such an outcome would probably be approved by the bulk of commentators who affirm the primacy of the interests of 'public policy'.80

Yet there are convincing arguments for the rejection of paternalism in favour of allowing people the ability to consent to risks of transmission. Given that "it is inherently difficult to justify any private activity in public terms",81 it would be unproductive to attempt to approach the question with a hope of reaching a determination as to the public interest involved in this type of individual behaviour. Rather, I will frame the question as one ultimately concerned with the role and value of legal paternalism in the context of HIV and risk behaviour.

Society regularly negotiates sets of acceptable risk-taking behaviours, which are then legally endorsed.82 As Tulloch and Lupton discuss, it is generally accepted that people will take risks as rational actors, where 'rational' incorporates all relevant contextual factors including economic, cultural and cognitive schemata.83 Some risk their health with cigarettes and alcohol in exchange for the pleasure they bring. Some accept the risks involved in the 'manly diversions' of sport. Those who undergo cosmetic surgery take certain risks. Many enter into sexual relationships with full awareness of the variety of risks involved, from pregnancy and venereal diseases to emotional co-dependence and infidelity. Whether we agree or disagree with the particular risk choices made by our peers, the individual's inherent right to expose him/herself to these risks is rarely called into question.

Now consider this scenario: Should the HIV negative partner of an HIV-positive person be denied the ability to freely and fully consent to a risk of infection by continuing to conduct a sexual relationship? Certainly, the risks involved are grave: if infected, a person faces the possibility of eventual progression to AIDS, and perhaps to death. And yet, if the consenting party is of adult age, and has been given full disclosure of the risk he or she is taking, then how can the state claim a legitimate basis for preventing this behaviour? The International Covenant on Civil and Political Rights (ICCPR), Article 17, protects the privacy of individuals from arbitrary interference. The Commonwealth Human Rights (Sexual Conduct) Act 1994, section 4, states:

Sexual conduct involving only consensual adults in private is not to be subject, by or under any law of the Commonwealth, a State or Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

Richard Mohr highlights the importance of allowing people the autonomy to "put themselves at risk through voluntary associations",85 and of making the assumption that individuals are rational beings. He concedes that in some circumstances the state may argue that "one should be protected from ceding away the very conditions that enable one to be an independent agent"86 (ie, life itself). But, he says, the lack of inevitability of infection and the centrality of sexuality to a meaningful life make state coercion unjustified in this circumstance.87

To ignore the value of consent is to replicate and reinforce the dominant narrative of the risk creator (intending predator) and the risk receiver (hapless victim). There is no space within this paradigm for the validation of participants as independent and rational sexual agents. Whilst the autonomy of the would-be infector is assumed, no allowance is made for the agency and autonomy of the potential infectee. Such a framework bears almost no relation to the reality of social relations and interactions, and is fundamentally unacceptable.

A Qualification: The Demand for Informed Consent

If, as suggested above, consent is to be made relevant to transmission laws, then important questions as to the quality of consent required must be addressed. The current position at common law takes little interest in the quality of consent in a sexual context. Consent is generally deemed valid, unless vitiated by some mistake as to the nature and character of the physical act, including a mistake as to the identity of the person with whom the act takes place.88 R v Clarence 89 stands for the proposition that the failure to disclose a sexually transmissible infection does not of itself cause such a mistake. In Clarence, a man had infected his wife with gonorrhoea through consensual intercourse without informing her of his infection. The Court quashed the assault conviction on the basis that Mr Clarence's failure to disclose did not amount to a fraud vitiating consent, as it was not a fraud going to the nature and character of the act.90 Pursuant to these authorities, there is no requirement in Australia that consent in a sexual context be 'informed'.

A radically different approach has been adopted by the Supreme Court of Canada in the recent case of R v Cuerrier.91 Henry Cuerrier, an HIV-positive man, was charged with aggravated assault (non-consensual assault endangering life) after repeated acts of unprotected consensual sex in the course of two successive relationships with women. He argued his defence on the grounds that both women had given their valid consent. On appeal, the Supreme Court unanimously agreed with the Crown's submission that Cuerrier's acts amounted to a fraud vitiating consent. All three judgements display a very strong intuitive position that Cuerrier's deceptive behaviour was "shocking"92, and each makes an attempt to locate some principled reasons for convicting him. On close reading of these judgements, it is clear that from a doctrinal perspective the decision is considerably flawed.93 However, the pertinence of the Cuerrier decision to this thesis lies not in its effect on common law precedent, but in the conceptual contributions it makes to policy debate. These contributions represent an attempt to confront the difficult issues of the value of consent, and as such are fundamentally useful to the future preparation of a sound legislative response to HIV transmission.

Notwithstanding the doctrinal flaws in the decision in Cuerrier, its attempts to conduct a reassessment of the concepts of sexual consent are to be applauded. Judicial formulations of consent post-Papadimitropoulos and Clarence have become "distorted" according to Lacey and Wells, who state that this body of law has "severely limited criminal law's protection of women's sexual integrity..."94 All seven judges in Cuerrier appear to have been sensitive to the need for reform in this area. McLachlin J aptly sums up this policy consideration when she states:

In the case at bar, I am satisfied that the current state of the law does not reflect the values of Canadian society. It is unrealistic, indeed shocking, to think that consent given to sex on the basis that one's partner is HIV-free stands unaffected by blatant deception on that matter. To put it another way, few would think the law should condone a person who has been asked whether he has HIV, lying about that fact in order to obtain consent.95

Mutual responsibility, in other words, is not a relevant concept when mutual knowledge is missing. Consent to the risk of HIV transmission should be recognised by the criminal law, but only where the consenting party is fully informed with respect to their partner's actual HIV status.

Consent and Feminist Discourse

Before ending this discussion, acknowledgment must be made of the potentially conflicting bulk of feminist legal literature, with respect to the nature and scope of consent under the criminal law. The concern raised by these writers relates to the ability or otherwise of parties to give free and full consent, as opposed to mere submission, in sexual interactions, given the gender and power differences which are often present in these relationships. Put another way, we should be asking whether the model of the independent and rational choice-making individual is an appropriate one in the context of sexual relationships, or indeed any other group risk activity, such as IV drug use. Nancy Goldstein has suggested that such a model may be inappropriate, particularly in the context of male-female sexual relationships.97 Ngaire Naffine also casts doubt on the construction of the disembodied, sovereign, and self-determining individual as offered by the likes of Kant and Mill, suggesting instead that the law remains preoccupied with the "bounded heterosexual male body" whilst "denying bodily integrity to women".98 Taking feminist discourse to the extreme, Andrea Dworkin and Catharine MacKinnon are still treating female sexuality as a male construction and all heterosexual sex as rape, thereby denying the capability of women to give true consent to heterosex at all.99

This writer does not agree that sex, whether hetero or homo, is inherently rape. That intimate relationships often involve gender-based power differences is undeniable. That these differences can compromise the ability of parties, both men and women, to give free and uncoerced consent is also undeniable. Submission has often been accepted in place of consent, pursuant to the dominant sexual paradigm that posits man as pursuer, woman as pursued, 'no' as 'maybe', 'maybe' as 'yes', and submission as conquest. But this writer does not accept that there is anything inherently powerless or victim-like about women, or gay men, or any other group. Women are in fact utterly capable of making free and equal determinations in furtherance of their own sexual self-expression. The Catharine MacKinnon brand of feminism, in this writer's opinion, constitutes an exercise in the disempowerment of women and the delegitimation of female desire. Many within the feminist legal debate are similarly critical of MacKinnon's stance, including Naffine,100 Smart,101 Vance102 and Rubin.103 Ultimately, consent is tangible, even if difficult to locate. The existing standards with respect to the meaning of consent may well be flimsy and insufficient, and there may well be need for reform in this area. But there is nothing inherently impossible about the concept of consent.

If we accept the rights of free acting adults to make informed and uncoerced decisions about their own risks and corresponding responsibilities, and if we acknowledge the potential capability of those adults to grant or withhold their consent without coercion, then there is no defensible justification for treating the consent of a person risking HIV infection as 'worthless'.

Protective measures

As Bronitt points out, the Model Code fails to make mention of the relevance which use of safer sex practices would have for the proposed criminal provisions.104 The use of protective measures is capable of being characterised in a number of alternate ways: first, as a complete defence to exposure and transmission; second, as a complete defence to exposure, but only meriting a penalty reduction for actual transmission;105 third, as evidence negating the mens rea of the offence; fourth, as evidence negating the actus reus of the offence. Under the third approach, as Bronitt106 has suggested, the use of safer sex measures by the defendant would be used as evidence showing a lack of requisite intention or recklessness on his or her part. Alternatively, the fourth approach, as devised by the majority in R v Cuerrier,107 would treat the presence of protective measures as a fact so lessening the risk of transmission as to rob it of its significance.

Commentary surrounding these alternatives has tended to become mired in issues relating to the potential effect on the victim. Thus the Legal Working Party of the Intergovernmental Committee on AIDS chooses to differentiate between threatened and actual harm caused to the 'victim', even where the accused's precautionary measures have been the same.108 Similarly, Bronitt is reluctant to endorse any defence for protective measures, arguing that to allow this type of defence would imply that a victim using ineffective protective measures had somehow been partly responsible for his or her infection.109

I would suggest that the attention given to the victim's consequences has been misdirected and has obscured the centrality of the accused's culpability. The success of the campaign against HIV transmission relies fundamentally on the promotion of preventative practices. The National HIV/AIDS Strategy urges that people learn to take responsibility for their own safety, and for the safety of others.110 Encouraging behaviour modification is the single biggest challenge of the HIV crisis, and the biggest hope for preventing the further spread of the virus. The purpose of exposure laws is to punish and deter behaviour placing others at risk. If people engaging in a consensual activity have taken all reasonable and available measures to prevent transmission, there would appear to be no justification for the intervention of the criminal law. In some cases, these measures may prove ineffective and a party may contract the virus. And yet whether actual infection ensues or not, the blameworthiness (or lack thereof) of the defendant is the same, even if the effect on the other party is not. I would argue that it would be highly inappropriate to be able to instigate prosecution of a defendant for exposing another to a risk of infection where preventative measures had been used, regardless of which party instigated the measures (assuming that such a fact could be ascertained at all).

Given that the use of preventative measures goes to the heart of the accused's culpability, it is preferable that it be used evidentially as material negating elements of either the mens rea or actus reus. As Bronitt suggests, the former could be achieved by taking legislative notice of measures used when assessing whether the requisite intention is present.111 Alternatively, future legislation could adopt the approach taken in Cuerrier, where it was suggested that "the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant", thereby negating an element of the actus reus.112 This would appear sound in principle. As argued above, the culpability for transmission offences must lie with the placing of others at risk. If preventative measures have been used, then the risk exposure must be treated as so diminished as to be non-culpable. The proposed Code provisions militate against this approach, however, since they criminalise the exposure of a victim to risk "even if the risk is low".113 This provision was clearly inserted to avoid complicated medical arguments as to the quantum of transmission risk involved in certain behaviours. In the past, courts have become tangled in determinations over the level of risk posed, struggling with evaluations of "appreciable" as opposed to "remote" risks.114 By reducing the requisite quantum of risk to "low", the MCC clearly hopes to avoid further entanglements. However, if 'low' risks are capable of encompassing those posed even by safer sex, then it could be that the Cuerrier approach is frustrated.

Clearly, criminal endangerment provisions of the type proposed by the MCCOC should expressly stipulate the effect which preventative measures should have on the elements of the offence. Furthermore, it would seem irrelevant to have regard to the instigator of the use of those protective measures (even if such a thing could be factually proven). No punishment should be meted out to any participant where serious preventative attempts have been made to lessen risks of transmission, regardless of the originator of those attempts. If such revisions are not made, then the law will continue to perpetuate and legitimate the narrative of the plague-carrying Other's singular responsibility and culpability. This is highly inappropriate and undesirable. The law should provide encouragement to all people actively to avoid placing themselves and others at risk through the use of measures protecting against the transmission of HIV, as per the guidelines of the National HIV/AIDS Strategy.

Recklessness: a dangerous standard

A person is reckless, according to the Model Criminal Code, if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.115

The inclusion of recklessness as an adequate standard has been criticised by many who would prefer to see the offence limited to cases of intentional transmission. Bronitt argues that it is inappropriate to prosecute individuals who are ignorant, or merely suspicious, of their HIV status.117 The better approach is to limit liability to intentional acts of transmission alone. This approach has recently been endorsed by the UK Home Office,118 and has also been given cautious support by many within the HIV forum, including the Terrence Higgins Trust in Victoria.119

The Model Criminal Code: Not a Model Answer

This chapter has argued that the proposed provisions of the Model Criminal Code are merely a replication of the moral panic narrative, based on inappropriate and patently inaccurate fictions of responsibility. By omitting provision for consent and for protective measures, and by widening culpability to reckless acts, the Code endorses the false paradigmatic dichotomy between risk creator and risk receiver. Concepts of personal and mutual responsibility for sexual safety are left unrecognised, and all culpability is placed with the criminalised HIV body. Founded as it is on such flawed fictions, the model code is inappropriate, unjust and counter-productive. It now remains for us to ask broader questions as to the value of the criminal law in the disease prevention forum. These are addressed in the following chapter.

THREE

The HIV pandemic is not merely a biological crisis. It is ultimately a social crisis, calling for clever and contextualised social responses. Predominantly, HIV is being transmitted in Australia sexually and through injecting drug use. The onus is therefore on policy makers to come up with transmission prevention strategies which will effectively persuade a comprehensive shift to safer sexual and drug injecting practices. The crucial question facing policy makers, then, is "how can individuals be 'ethically' persuaded to consent to change...?"120 The legal system has often been promoted as an effective means of coercing social behavioural changes. But is the invocation of law appropriate, or ethical, in this forum? The question we must ask is: what place does the law have in controlling social, and particularly sexual, behaviour?

Bodily Pleasures and the Difficulties of Control

Justice Michael Kirby observes, wisely, that "behaviour modification is hard to achieve at the best of times. It is harder to sustain where people's pleasures are involved."121 In a similar vein, Aristotle pointed out that "pleasures impede wise thinking,... for while [they] last no one can think of anything."122

Sexuality is perhaps one of the most elusive of the human pleasures, being as it is an intensely personal and (usually) private expression of self. Susan Sontag suggests that in this capitalist era of enjoyment maximisation, sexuality has become a "consumer option", an expression of liberty and mobility.123 Though she, and others, argue that the advent of HIV has brought this era to an end, these claims are unsubstantiated and may well be groundless. In fact, there is ample evidence to show that the opposite is true. Dr Cate Cherry, infectious diseases specialist at the Alfred Hospital, Melbourne, reports for example that confirmed new HIV infections in Sydney doubled in the three month period following the Gay Mardi Gras in 1998.124

Clearly, any attempts at reforming behaviour must acknowledge that sexuality is of fundamental importance to an individual's identity and self-determination. The promotion of abstinence as a strategy, therefore, is bound to be ineffectual and inappropriate. Rather, it must be assumed that the continuing sexuality of all individuals, be they HIV-positive or otherwise, is to be respected. This point was affirmed in a recent forum convened by the Victorian AIDS Council, where the audience was reminded that PLWHAs have a right to be sexually active.125 A similar theme was promoted by artist Tony Kaye's 1996-1997 touring exhibition titled 'Don't Be Scared', which comprised an installation of four young HIV-positive people lounging naked on a couch and a sign reading "Please Touch". This work was designed as an acknowledgment of the real and continuing sexuality of, and the living of, HIV-positive people. These are important principles, albeit ones which have been relegated minimal priority in the public health discourse to date.

Similarly, policy strategies must recognise that injecting drug users are choosing to engage in a pleasurable activity, where the promotion of abstinence would be wholly ineffectual. Putting aside the question of the IV user's 'right' to engage in this behaviour, pragmatism dictates that these lifestyle choices must be acknowledged.

The crucial question is: how is the state to persuade people into making their pleasure-seeking behaviour safe? Perhaps in attempting to answer this, it is best to look first at the things which don't work. In this, the lessons of history can be very helpful. As we saw earlier, there are many telling parallels between the current HIV pandemic and earlier syphilis epidemics.

The first lesson to be learnt, as Brandt points out, is that "fear and moral exhortation alone" are not effective persuaders of change.126 Furthermore, Brandt asserts, education strategies which merely teach fear, stigma and discrimination will be ineffectual.127 He cites the following quote from American social hygienist Margaret Cleaves, from 1910, as an example of inappropriate education strategies:

There should be taught such disgust and dread of these conditions [syphilis] that naught would induce the seeking of a polluted source for the sake of gratifying a controllable desire.128

The second lesson to be learnt is that the state cannot simply will its citizens into behavioural change through moralising and optimism. American soldiers of the First World War were not convinced to give up visiting prostitutes upon request, despite the fearful propaganda campaigns launched. Similarly, there is nothing to be gained by mere affirmations of (heterosexual) marital unions coupled with renunciations of sexual encounters of the casual kind. Watney explores this, likening the British state response to HIV to the Thatcherite vision of a society-less nation in which the family is held up as the key unit and the single appropriate site for sexual relations.129 This approach is essentially one of 'ignore it and it will go away', where it is hoped that if social and sexual realities are ignored, they might just disappear and reinvent themselves in a more acceptable fashion. The problem with such optimism is that it is simply unrealistic. Any successful strategy must work from within a framework which recognises and accepts that not all relationships are conducted within the hetero-marital norm, and that any effort to convince people otherwise is a waste of time.

The Better Forum: Criminal Law vs Public Health?

The question of whether HIV transmission prevention is best addressed by the criminal forum, or better left to the public health system, is the favoured topic in many forums of current debate. The popular 'mantra' of mainstream gay-dominated (and therefore male-dominated) AIDS organisations is that criminal laws are never appropriate, and that the public health system is by far the preferred alternative.130 There is however a growing voice of dissent which suggests that such a view is too simplistic.131 Indeed the reality is that both forums are useful, and yet neither offers a complete solution in itself. At a broad level it would seem that the most effective and ethical approach to the prevention of HIV transmission is to be found in a careful combination of public health powers and last-resort criminal sanctions.

The Public Health Scheme

Amongst its listed virtues, the public health system allows a high degree of flexibility, and a large range of available options. Public health officials are empowered to compel infected persons to submit to a variety of compulsory measures, ranging from examination and testing, counselling, restrictions on movement, to isolation and detainment. In most states they are also empowered to punish persons who knowingly expose others to risk of infection through summary offences attracting a fine and/or a period of imprisonment of up to two years.132

There are, however, reasons to be reticent about unreservedly accepting the public health approach. Many commentators have in fact recognised that there are a number of deficiencies in public health powers, including lack of visible auditing and monitoring mechanisms and "transparency"133; excessive procedural "informality (no hearing) and invisibility (with limited opportunity of external review)"134; and very wide-ranging powers. Departmental medical officers are empowered to make arrest, enter premises, and use reasonable force in the execution of these orders.135 In Victoria, an appeal against an order made by the Chief General Manager must be heard by the Supreme Court.136 That determinations are made with respect to submitting people to the system and allowing them to leave, without the assessment criteria being widely promulgated or open to review, is admittedly disturbing. For these reasons, some civil liberties advocates have in fact expressed a preference for the criminal law option, since at least in the criminal forum there is judicial involvement and the "threat of unbridled exercise of power" is absent.137 Bronitt notes:

It is important we appreciate that penality comes in varied forms, and that the 'preventative' powers of compulsory detention and treatment have the potential to operate coercively and to impact negatively on individual human rights... Within this private sphere of 'civil regulatory power', there is a real danger that the process is the punishment (original emphasis)."138

Policy makers must not be afraid to face these hard cases. Whilst most AIDS organisations in Victoria deplore the recent spate of prosecutions in that State, Horsley argues that these responses "smack of gender blindness and gross insensitivity to the plight of positive women victimised by the actions of men such as those prosecuted."140 Whilst Horsley frames her criticism in terms of deceived women, male partners who have been similarly misled (as in DPP v F) could equally be seen as `victimised'. Horsley's argument reminds us that in the final analysis, even when all efforts are made to educate and encourage behavioural change, there will still be a minority of people, male and female alike, who may insist in engaging in the 'indefensible'. To recognise this is to move beyond the mantra of a pure 'mutual responsibility' framework, and to acknowledge that some acts simply must be viewed as culpable. For this small proportion, such culpable behaviour cannot escape criminal sanctions.

A Role for the Criminal Law

Without attempting any kind of summary of criminal jurisprudence, it might be safely (if simplistically) stated that the criminal law is considered a useful tool in promoting social determinations of good and evil, through the principles of deterrence, retribution and rehabilitation. As Bronitt observes, "punishment is a form of cultural signification".141 The invocation of the criminal law serves a powerful normative function, which is valued for its symbolic and educational effects. The dual themes of general deterrence and public education are cited by the Victorian Office of Public Prosecutions as primary motivations for pursuing the recent series of prosecutions under the reckless endangerment provisions.142

In this writer's opinion it would seem that for those hard cases where punishment must be meted out, the criminal justice system is better equipped than the public health system. As civil libertarians emphasise, transparency, accountability and formality are prerequisites to the punishment of individuals. To place an HIV-positive person under a patient management scheme is one thing; yet to imprison him or her on summary judgement without judicial involvement is quite another. It would seem imperative that the criminal justice system be involved in order to ensure justice to potential accuseds. Moreover, if the law is to issue punishment, then it should be in the more visible arena of the criminal law, where the symbolic and educational value of 'cultural signification' can be most effective.

The Limitations of Criminal Sanctions

The usefulness of criminal sanctions must not, however, be overstated. As a last-resort mode of punishment the criminal law is, as argued above, valuable. But it should not be mistaken as an adequate replacement for public health powers. Even if the fundamental problems raised in Chapter Two are remedied, there are still many factors which militate against the overall effectiveness of criminal sanctions as the basis for a general behaviour modification strategy. I wish to consider three here: first, the existence of factors detracting from the effectiveness of general deterrence; second, detrimental educational outcomes; and third, the problems associated with imprisonment of HIV-positive offenders.

First, it may be that deterrent effects in this forum are reduced. PLWHAs are likely to be suffering through stress, depression, stigma, isolation, fear, and anger. If they have already experienced an AIDS-defining illness, they are possibly also suffering from weakness, decline in health, any number of systematic symptoms, neurological disorders, opportunistic infections, and various forms of cancer. They are likely to be experiencing a loss of income, accommodation and control over their own life, and a loss of identity and self-worth. They are also likely to be painfully aware that their life has an expiry date attached to it, even though new medications have increased the life expectancy for many PLWHAs and changed the progression of the disease. PLWHAs have described experiencing a 'social death' long before the physical one. As Grant Farquharson, AIDS Council of NSW counsellor, observes: "In a world in which youth and beautiful bodies are promoted as primary values, HIV and AIDS are very unwelcome guests."143 PLWHAs can feel themselves to be the "undead", forced to keep themselves and their 'unbecoming' illness from society's sensitive gaze.144 Many positive persons are therefore likely to be living in one or more of the following (grossly simplified) positions: (i) a state of denial; (ii) a state of defeat and loss of interest in long-term prospects; (iii) a state of absorption in the more immediate crises of their positive status. Given this context, it is unclear whether prosecutions will have the desired deterrent effect upon the HIV-positive population.145

Second, whilst public education is sure to be achieved in some form through criminalisation and prosecutions, the quality of that education must be carefully calculated. As explored in Chapters One and Two, the current Model Criminal Code provisions are premised on, and reinforce, flawed fictions of culpability, locating responsibility with the diseased Other. It enforces the narrative of the criminal diseased bodies of the Other, thereby reproducing the stigma and loathing against the HIV body. As Kippax et al note:

The law has a powerful symbolic effect in affirming the values of the community. Where the law is prejudiced, irrational or discriminatory, it can be said to promote those same characteristics in the community.146

Third, there are significant problems inherent in introducing increasing numbers of HIV-positive people into the prison system.149 The dissemination of risk-minimisation education is likely to be more difficult in the prison environment,150 and questions of access to condoms and clean injecting equipment in prisons are likely to become increasingly crucial. In addition, increased incarceration of HIV-positive defendants will require some formal address of the issues involved in justice in sentencing, which has to date been a largely neglected question. This thesis is not the forum for an adequate exploration of the issues involved. Briefly however, the sentencing of offenders with HIV requires a principled consideration of two issues if the principles of just deserts are to remain intact. Firstly, courts must recognise that imprisonment constitutes a harsher penalty for the HIV-positive offender. PLWHAs have a high degree of susceptibility to stress-related health disorders, and the prison environment can potentially cause them a great deal of physical distress. Secondly, the considerably shortened life-span of HIV-positive offenders means that otherwise minimal sentences may in fact constitute an effective life sentence. If courts are to adhere to the principles of just deserts and proportionality, as sentencing legislation requires them to do, then these issues must be further explored.151

The above discussion illustrates that whilst the criminal law is an appropriate forum for the punishment of hard cases, it is of limited use as a forum for general HIV containment strategies. Essentially the HIV crisis requires the positive promotion of the agency and responsibility of individuals, and of safe behavioural alternatives. As a site of 'cultural signification', the criminal law is capable of performing a limited symbolic and educational role. On the whole, however, the criminal forum is no substitute for the professional and educational expertise which the public health system can offer.

CONCLUSION

ENDNOTES

2 Elsewhere in this thesis reference may be made to "AIDS" when citing other works. However, AIDS is a term which refers specifically to the Acquired Immune Deficiency Syndrome, which can be caused by HIV.

3 S. Sontag 1989, AIDS and its Metaphors, London, Allen Lane The Penguin Press.

4 reference will be made to J. S. Mill 1987, On Liberty, Middlesex, Penguin (first published 1859); R. Mohr 1986, "AIDS, Gay Life, State Coercion", Raritan, vol. 6, no. 1, pp. 38-62; and International Covenant on Civil and Political Rights.

5 see N. Naffine and R. Owens 1997, Sexing the Subject of Law, Sydney, Law Book Company; C. Smart 1995, Law, Crime and Sexuality: Essays in Feminism, London, SAGE Publications; C. Vance 1984, "Pleasure and Danger: Towards a Politics of Sexuality", in C. Vance (ed) 1984, Pleasure and Danger: Exploring Female Sexuality, Boston, Routledge & Kegan, pp. 1-22; G. Rubin 1984, "Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality", in Vance (ed), pp. 291-311.

6 S. Cohen 1980, Folk Devils and Moral Panics: the Creation of the Mods and Rockers, Oxford, Martin Robertson, (first published 1972), at 9.

7 Id at 204.

8 J. Clifford 1986, "Introduction", in J. Clifford and G. Marcus (eds) 1986, Writing Culture, University of California Press, at 2.

9 Carrier, unpublished, cited in D. Gewertz and F. Errington 1991, "We Think, Therefore They Are? On Occidentalising the World", Anthropological Quarterly, vol. 64, no. 2, pp. 80-91 at 81.

10 see, for example, R. Graycar and J. Morgan 1990, The Hidden Gender of Law, Sydney, Federation Press; Naffine and Owens, n 5; Smart, n 5.

11 Smart, n 5, at 49.

12 C. Patton 1985, Sex and Germs, The Politics of AIDS, Boston, South End Press, at 51.

13 Id at 58-9.

14 Id at 7.

15 L. Kopelman 1988, "The punishment concept of disease", in C. Pierce and D. Van De Veer (eds) 1988, AIDS, Ethics and Public Policy, Belmont, California, Wadsworth Publishing Company, pp. 49-55 at 54-55.

16 M. Douglas 1966, Purity and Danger: An Analysis of Concepts of Pollution and Taboo, London, Routledge & Kegan Paul, at 2, 113.

17 Sontag, n 3, at 32.

18 Patton, n 12, at 103.

19 Id at 367.

20 Brandt 1988a, "The Syphilis Epidemic and its Relation to AIDS", Science, vol. 239, 22 January 1988, pp. 375-380 at 376.

21 K. Saunders 1995, "Controlling (Hetero)Sexuality: The Implementation and Operation of Contagious Disease Legislation in Australia, 1868-1945", in D. Kirkby (ed) 1995, Sex, Power and Justice: Historical Perspectives on Law in Australia, Melbourne, Oxford University Press, pp. 2-18 at 4.

22 Id at 6.

23 Saunders, n 21, at 7.

24 Id at 9.

25 Brandt, n 20, at 380.

26 Ibid.

27 Id at 377; M. Kirby 1992, "AIDS and Human Rights", Australian Gay and Lesbian Law Journal, vol. 1, pp. 1-19 at 10.

28 Brandt, n 20, at 377.

29 A. Brandt 1988b, "AIDS in Historical Perspective: Four Lessons from the History of Sexually Transmitted Diseases", American Journal of Public Health, vol. 78, no. 4, pp. 367-371 at 368.

30 Kirby, n 27, at 10-11.

31 Brandt, n 20, at 379.

32 The extent of the HIV crisis in the developing world is overwhelming. However, the social, sexual and political issues surrounding the epidemic in those countries are quite different from those in Western nations, and I do not propose to address them in the scope of this thesis.

33 The phrase 'magic bullet' refers to a drug which will seek and destroy its disease. It was coined by Ehrlich, the professor who discovered Salvarsan, the cure for syphilis, in 1909: Brandt, n 20, at 380.

34 Patton, n 12, at 5.

35 Ibid.

36 World Health Organisation 1996, cited in J. Arachni 1998, Teaching Materials, prepared for the Victorian AIDS Council Support Services Training Course, unpublished.

37 National Centre in HIV Epidemiology and Clinical Research 1997, HIV/AIDS and Related Diseases in Australia: Annual HIV/AIDS Surveillance Report 1997, Darlinghurst, NSW.

38 see J. Ross 1988, "Ethics and the Language of AIDS", in Pierce and Van De Veer, n 15, pp. 39-48 at 39.

39 see Sontag, n 3, at 32-34, 54; and Ross, n 38, at 43-44.

40 Patton, n 12, at 85.

41 Christian Family Renewal, Stafford VA, letter undated circa February 1984, cited in Ibid.

42 Patton, n 12, at 8.

43 Id at 96.

44 `Person/people living with HIV/AIDS' is the term preferred by the HIV-positive community over other phrases such as `victim': see 'the Denver Principles', 1983 Gay and Lesbian Health Conference, cited in W. Flanagan 1995, "People with HIV/AIDS, Gay Men and Lesbians: Shifting Identities, Shifting Priorities", in D. Herman and C. Stychin (eds) 1995, Legal Inversions: Lesbians, Gay Men and the Politics of Law, Philadelphia, Temple University Press, pp. 195-215 at 198.

45 M. Hurley 1992, "AIDS Narratives, Gay Sex and the Hygienics of Innocence", Southern Review: Literary and Interdisciplinary Essays, vol. 25, no. 2, pp. 141-159 at 152.

46 C. Patton 1990, Inventing AIDS, New York, Routledge, at 117.

47 Ibid.

48 New South Wales Legislative Council Standing Committee on Social Issues 1991, Medically Acquired HIV, Sydney, unpublished, October 1991.

49 New South Wales Anti-Discrimination Board 1992, Discrimination: The Other Epidemic, Report of the Inquiry Into HIV and AIDS Related Discrimination, Sydney, NSW Anti-Discrimination Board, at 3.

50 Hurley, n 45, at 155.

51 see surveys in S. Kippax, G. Tillett, J. Crawford and J. Cregan 1991, Discrimination in the Context of AIDS: Disease and Deviance, Sydney, Macquarie University AIDS Research Unit, Department of Community Services and Health, at 26; McCallum et al cited in NSW Anti-Discrimination Board, n 49, at 7.

52 S. Watney 1996, Policing Desire: Pornography, AIDS and the Media, 3rd ed, Minneapolis, University of Minnesota Press, at 26.

53 C. Waldby 1992, "AIDS, Death and the Limits of Identity", Southern Review: Literary and Interdisciplinary Essays, vol. 25, no. 2, pp. 205-212 at 206.

54 Id at 205.

55 R. Goldstein 1989, "AIDS and the Social Contract", in E. Carter and S. Watney (eds) 1989, Taking Liberties: AIDS and Cultural Politics, London, Serpent's Tail, pp. 81-94 at 81.

56 Ross, n 38, at 46.

57 R. Donovan 1995, "The Plaguing of a Faggot, the Leperising of a Whore: Criminally Cultured AIDS Bodies, and 'Carrier Laws'", in J. Bessant, K. Carrington and S. Cook (eds) 1995, Cultures of Crime and Violence, Bundoora, Victoria, La Trobe University Press, pp. 110-124 at 120.

58 N. Greenberg 1997, "The Rhetoric of Risk", Alternative Law Journal, vol. 22, no. 1, pp. 11-16 at 12.

59 Id at 13.

60 Donovan, n 57, at 119.

61 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General 1996, Model Criminal Code, Chapter 5, Non-Fatal Offences Against the Person, Discussion Paper, Canberra, MCCOC/SCAG; Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General 1998, Model Criminal Code, Chapter 5, Non-Fatal Offences Against the Person, Report, Canberra, MCCOC/SCAG: see appendices 1 and 2.

62 respectively: Crimes Act 1900 (NSW) s 36; Criminal Law Amendment Act (No 2) 1991 (WA); and Crimes Act 1958 (Vic) s 19A.

63 see S. Bronitt 1998, "The Transmission of Life-Threatening Infections: A New Regulatory Strategy", in R. Smith (ed) 1998, Health Care, Crime and Social Control, Leichhardt, NSW, Hawkins Press, pp. 167-178; S. Bronitt 1997a, "Controlling Disease and the Criminal Law: A New Regulatory Strategy", Paper presented to the Second Annual Conference of the Australian Institute of Health, Law and Ethics; C. Ward 1998a, "'Reckless Conduct': Transmission Offences", National AIDS Bulletin, vol. 12, no. 2, pp. 34-35; and B. Loff 1998, "The Law and HIV Transmission: Statutes, Common Law, Public Health Law and the Criminal Law", in Victorian AIDS Council, Proceedings of the HIV Transmission and Public Policy Forum, unpublished, 18 June 1998, Melbourne.

64 n 61. In its Final Report, released September 1998, the MCCOC chose to abandon the specific transmission offence. Instead, it incorporated the exposure of another to a disease capable of causing death or serious harm into the general reckless endangerment provisions: Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General 1998, n 61, at ss 5.1.24 - 5.1.26; see appendix 2. The more recent proposal is, however, substantially the same as the earlier model, since both fall under the heading of endangerment offences. For the most part, the discussion in this chapter applies equally to both models, though see n 65.

65 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General 1996, n 61, at s 26.5. Note that under the MCCOC 1998 suggested provisions, only recklessness, and not intention, is included as a standard of culpability: see appendix 2.

66 Public Health Act 1991 (NSW) s 13(1); Health Act 1937 (Qld) s 48(2) (re spouses only); Public and Environmental Health Act 1987 (SA) s 256(1); Criminal Law Consolidation Act 1935 (SA) s 37; Public Health (Notifiable Diseases) Regulations 1989 (Tas) s 30(1); HIV/AIDS Preventative Measures Act 1993 (Tas) s 19(2); Health (Infectious Diseases) Regulations 1990 (Vic) s 120.

67 R v Brown [1993] 2 WLR 556; Attorney-General's Reference (No. 6 of 1980) [1981] QB 715.

68 R v Donovan [1934] 2 KB 498, cited in Naffine and Owens, n 5, at 87.

69 R v Coney (1882) 8 QBD 534.

70 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331.

71 R v Donovan [1934] 2 KB 498; R v Terrence Jones (1986) 83 Cr App R 375; R v Aitken [1992] 1 WLR 1006.

72 R v Brown [1993] 2 WLR 556 at 557, per Lord Templeman at 563, Lord Jauncey at 574, Lord Lowry at 583.

73 N. Lacey and C. Wells 1998, Reconstructing Criminal Law: Critical Perspectives on Crime and the Criminal Process, London, Butterworths, 2nd ed, at 351.

74 Mill, n 4.

75 Duff, cited in N. Bamforth 1994, "Sado-Masochism and Consent", [1994] Criminal Law Review, pp. 661-664 at 663.

76 on Devlin and legal moralism, see Pierce and Van De Veer, n 15, at 68; G. Williams 1962, "Consent and Public Policy", [1962] Criminal Law Review, pp. 74-83 at 74-76; and P. Fitzgerald 1962, Criminal Law and Punishment, Oxford, Clarendon Press, at 78-81.

77 [1993] 2 WLR 556.

78 Id per Lord Templeman at 564-566, Lord Jauncey at 573-574, Lord Lowry at 583.

79 Id at 563.

80 see UK Law Commission 1994, Criminal Law: Consent and Offences Against the Person, Consultation Paper No. 134, HMSO, London, at para.'s 15.1-15.5; and S. Bronitt 1994a, "Spreading Disease and the Criminal Law", [1994] Criminal Law Review, pp. 21-34 at 32.

81 K. Edwards 1996, There's a Fine Line Between Pleasure and Pain: The Role of Criminal Assault Law in the Consensual Infliction of Injury in a Sexual Context, Paper submitted for the Research Unit, Faculty of Law, Australian National University, Canberra, unpublished, at 13, referring to A. Ashworth, 1995, Principles of Criminal Law, Oxford, Clarendon Press, 2nd ed, at 322.

82 see C. Wells 1993, "Corporations: Culture, Risk and Criminal Liability", [1993] Criminal Law Review, pp. 551-566 at 553.

83 J. Tulloch and D. Lupton 1997, Television, AIDS and Risk: A Cultural Studies Approach to Health Communication, St Leonards, NSW, Allen and Unwin, at 4.

84 The recent decision of the European Court of Human Rights in Laskey, Jaggard and Brown (European Court of Human Rights, unreported, 19 February 1997) doesn't lend support to this interpretation. In that case the defendants in Brown sought relief from the European Court under Article 8 of the European Convention, which protects the "privacy and family life" of all citizens. The Court declined relief on the grounds that the UK's acts were intended for the protection of "public safety..[and] the protection of health or morals" (European Convention, Article 8(2)), including protection from "blood infection" (see Bronitt 1998, n 63, at 171). Given this finding, it would seem that the prevention of HIV transmission risks is unlikely to be deemed an 'arbitrary' interference under the Commonwealth Act.

85 Mohr, n 4, at 41.

86 Id at 41-46.

87 Ibid.

88 Papadimitropoulos v R (1958) 98 CLR 249.

89 (1888) 22 QBD 23.

90 Ibid.

91 R v Cuerrier (1998) (Supreme Court of Canada, File No. 25738) reported at

http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/cuerrier.en.html.

92 Id per McLachlin J at para. 66.

93 Indeed, in each judgement is contained a clear summary of the inadequacies of the other two. The majority judgement, delivered by Cory J, invents a new and groundless limitation to the commercial fraud rule in the added "significant risk of serious bodily harm" requirement (per Cory J at para.'s 110-116; and McLachlin J at para.'s 54, 57). L'Heureux-Dube J formulates fraud as the inducement of consent through deception (at para. 16), risking "sweeping and unprecedented... over-extension" and "trivialisation" of the criminal law (per McLachlin J at para.'s 53, 54, 57; and Cory J at para.'s 135-137). McLachlin J suggests making an "incremental" change to the common law "to permit deceit about sexually transmitted disease that induces consent to be treated as fraud vitiating consent" (at para. 75), based on a view that the nature of the physical act is essentially altered by the sexual exchange of diseased fluids (at para. 72). Whilst determined to avoid over-broad principles, McLachlin J opens the door to new arguments on the types of deceits which might alter the very nature of the physical act: would a false representation of sterility, for example, alter the very nature of the act, namely from the exchange of sterile to potent sperm? Though McLachlin J recognises the potential scope of these new arguments, she decides to leave them "for another day" (at para. 73). These doctrinal flaws, and the clear and irreconcilable differences between the three judgements, cast doubt on the authority of the decision.

94 Lacey and Wells, n 73, at 386, 388; see also C. Boyle 1984, Sexual Assault, Toronto, Carswell, at 66.

95 R v Cuerrier, n 91, at para. 66.

96 P. Horsley 1998, "Letter to the Editor", HIV/AIDS Legal Link, vol. 9, no. 3, p. 5.

97 N. Goldstein 1997, "Introduction", in N. Goldstein and J. Manlowe (eds) 1997, The Gender Politics of HIV/AIDS in Women: Perspectives on the Pandemic in the United States, New York, New York University Press, at 3.

98 N. Naffine 1997, "The Body Bag", in Naffine and Owens, n 5, pp. 79-93, at 84.

99 Id at 92.

100 Ibid.

101 Smart, n 5, at 117.

102 Vance, n 5, at 19.

103 Rubin, n 5, at 305-306.

104 Bronitt 1998, n 63, at 172-173.

105 This was suggested by the Legal Working Party with respect to public health exposure offences: see Department of Health, Housing and Community Services 1992a, Recommendations of the Legal Working Party of the Intergovernmental Committee on AIDS, Canberra, DHHCS, recommendation 2.5.3, at 5.

106 S. Bronitt 1992, "Criminal Liability for the Transmission of HIV/AIDS", Criminal Law Journal, vol. 16, no. 1, pp. 85-93 at 91-92.

107 n 91, per Cory J at para. 129.

108 Department of Health, Housing and Community Services, n 105, at 5.

109 Bronitt, n 106, at 91-92.

110 Department of Community Services and Health 1989, National HIV/AIDS Strategy: A Policy Information Paper, Canberra, AGPS, at 24.

111 Bronitt, n 106, at 91-92.

112 R v Cuerrier, n 91, per Cory J at para. 129.

113 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General 1996, n 61, at s 26.5(2). The Final MCC Report retains this broad approach to risk, including conduct "whatever the statistical or arithmetical calculation of the degree of risk": Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General 1998, n 61, s 5.1.24(3).

114 see R v B (unreported, 3 July 1995); R v D (unreported, 1 May 1996); Beckley (Supreme Court of Victoria, unreported, 1996); Mutemeri v Cheesman (Supreme Court of Victoria, unreported, 29 April 1998); for further discussion see Loff, n 63.

115 Model Criminal Code, Ch 2, s 5.4(2): n 61 (unchanged in 1998 MCC). Note that these comments are even more pertinent under the 1998 model, where only reckless endangerment is made culpable.

116 The possibilities of this interpretation are noted with respect to the UK Law Commission's recommendations on the Criminal Code by Bronitt, n 80, at 29-30; and by Greenberg, n 58, at 13.

117 Bronitt, n 80, at 30.

118 see Criminal Law Review, Editorial, April 1998, pp. 233-234.

119 Loff, n 63, at 8.

120 S. Guttmacher 1990, "HIV Infection: Individual Rights v. Disease Control", Journal of Law and Society, vol. 17, no. 1, pp. 66-76 at 71-72.

121 M. Kirby 1996, "Human Rights and the HIV Paradox", Lancet, 348, pp. 1217-1218.

122 Aristotle 1152, The Nicomachean Ethics , cited in K. Kelly 1995, "The Assumption of Risk Defense and the Sexual Transmission of AIDS: A Proposal for the Application of Comparative Knowledge", University of Pennsylvania Law Review, vol. 143, no. 4, pp. 1121-1189 at 1121.

123 Sontag, n 3, at 77.

124 pers. comm., Melbourne, 29 May 1998.

125 Victorian AIDS Council, "Facilitated Discussion", in Victorian AIDS Council, n 63, at 26.

126 Brandt, n 20, at 380.

127 Brandt, n 29, at 369.

128 Id at 368.

129 S. Watney 1989, "Taking Liberties", in Carter and Watney, n 55, at 30.

130 for example, see Ward, n 63, at 35; J. O'Reilly 1998, "HIV Transmission and the Public Interest: A Critique", in Victorian AIDS Council, n 63, at 23-24.

131 for example, see Horsley, n 96.

132 see n. 66. No specific offences exist in the ACT, NT or WA.

133 S. Bronitt 1996, "Fracturing the Criminal Law: Disease Control and the Limits of Law-Making", Health Care Analysis, vol. 4, no. 1, pp. 59- 63 at 62.

134 Ibid.

135 Health Act 1958 (Vic) s 121.

136 Health Act 1958 (Vic) s 122.

137 R. Bayer, cited in Loff, n 63, at 9.

138 Bronitt 1997a, n 63, at 177.

139 R v Cuerrier, n 91; and DPP v F (County Court of Victoria, unreported, 6 March 1998).

140 Horsley, n 96.

141 Bronitt 1998, n 63.

142 Crimes Act 1958 (Vic) s 22; on justifications for prosecution see DPP v F, n 139, per McInerney J at 5-6; see case note in C. Ward 1998b, "Conviction for HIV Offences Followed by Suicide", HIV/AIDS Legal Link, vol. 9, no. 2, pp. 6-7; and see Victorian AIDS Council, n 125, at 28-29.

143 G. Farquharson 1995, "The Widening Gyre: The Impact of HIV on Negative Men", National AIDS Bulletin, vol. 2, no. 2, pp. 16-17 at 17.

144 Hurley, n 45, at 143.

145 Watchirs agrees: see H. Watchirs 1998, "Overview of HIV/AIDS and the Law: Principles, Issues and History", in Victorian AIDS Council, n 63, at 9.

146 Kippax et al, n 51, at 13.

147 Victorian AIDS Council, n 125.

148 Flanagan, n 44, at 208.

149 see O'Reilly, n 130.

150 see Kirby, n 121, at 1218.

151 see HIV/AIDS Legal Centre 1995, HIV/AIDS Sentencing Kit, Sydney, unpublished.
 

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