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

Abstract

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

Prosecuting and Propagating Emotional Harm: The Criminalisation of HIV Nondisclosure in Canada

“…In nondisclosure cases, the law is only concerned with whether disclosure happened prior to sex so as to justify the fraud requirement in the legal test set out in Cuerrier and confirmed in Mabior (Buchanan 2015). By focusing on disclosure only in relation to HIV, the law perpetuates HIV/AIDS exceptionalism and reveals the pervasive stickiness of emotions (Ahmed 2004) like fear and disgust to HIV (Bogosavljević and Kilty 2021). These emotional attachments situate nondisclosure as a moral failure that angers, scares, and disgusts, emotions that underpin state efforts to manage, trace, and criminalize individuals perceived to be threats to the body politic.…”

“…Following Cova, Deonna, and Sander (2015), we can see that law positions disclosure as the only moral course of action, which, when coupled with emotions like anger (at nondisclosure), disgust and fear (of HIV), results in legal characterizations of PLWH who fail to disclose as dangerous, immoral people who must be censured by law (Kilty and Bogosavljević 2019;Adam et al 2015;Bennett, Draper, and Frith 2000;Chalmers 2002;Kirkup 2015). That this application of law undermines decades of public health messaging that encourages us to approach every sexual encounter as a potential risk for infection (of HIV or any other sexually transmitted infection) usefully illustrates the disequilibrium in how we apply moral censure to HIV risk (Kilty 2018) 6 and raises questions as to whose claims are considered credible (Bogosavljević and Kilty 2021). Harcourt (1999, 131) contends that the harm principle has undergone an ideological shift since the 1960s, where proponents of regulation and prohibition abandoned the rhetoric of legal moralism in favour of the harm principle such that "harm became the critical principle used to police the line between law and morality.…”