Carter, D.J --- "HIV transmission, public health detention and the recalcitrant subject of discipline: Kuoth, Lam v R and the co-constitution of public health and criminal law" [2016] UTSLRS 36; (2016) 25(2) Griffith Law Review 172

Last Updated: 2 June 2017

The Version of Record of this manuscript has been published and is available in Griffith Law Review (2016) http://www.tandfonline.com/ 25:2, 172-196, DOI: 10.1080/10383441.2016.1238563
Please cite only the Version of Record, which is the authoritative version.

HIV Transmission, Public Health Detention and the Recalcitrant Subject of Discipline: Kuoth, Lam v R and the Co-constitution of Public Health and Criminal Law

David J Carter*

Abstract The attempt to govern HIV through technologies of coercion, compulsion or detention has long raised significant questions for law, public health and state practice generally. In this vein, many public health writers have challenged the continued availability of criminal-legal sanction in relation to particular HIV-related events, namely where potential or actual transmission might result in constraint or deprivation of liberty by virtue of criminal punishment. Within public health practice, however, a variety of communicable disease approaches utilise the same technologies of constraint or deprivation of liberty, including administrative detention. As yet, the structural and operational connections between criminal legal and public health practices have not been adequately addressed. Here I read the recent case of Kuoth, Lam v R [2010] VSCA 103 (21 April 2010) as an event that disturbs the dominant frame of separation and difference that we have applied to the relationship between public health and criminal law. To do so, I draw principally upon the work of Foucault and his recent interpreters, Ben Golder and Peter Fitzpatrick. As I shall argue, despite a disjunction between these two powers of modernity, the operation of criminal law and public health are not at odds, but are rather mutually co-constitutive.

Introduction

The relationship between public health practice and criminal law raise significant questions at their intersection. This perhaps never more so in relation to the question of communicable disease control, and particularly HIV. These questions are at the heart of the recent Victorian case of Kuoth, Lam v R [2010] VSCA 103 (21 April 2010) (‘Kuoth, Lam v R’). Lam Kuoth, a 28-year-old man, had established a relationship with a woman and, though he was aware that he was HIV-positive, engaged in sexual intercourse with her without the use of a condom. Later, he was charged with two counts of reckless endangerment. This is a criminal offence in Victoria.^[1] Kuoth pleaded guilty in his 2008 trial,^[2] after which he was sentenced to two years’ imprisonment with an additional community-based order for two years, wholly suspended for three years.^[3] The sentence was as the Crown had requested in submissions.^[4] This criminal sentence was not, however, the final engagement between Kuoth and the law. In 2010, a successful appeal on sentence was heard on two grounds: that the defendant’s guilty plea had not been taken into account at sentence and that—more significant for the purposes of this article—the prison sentence imposed at first instance was manifestly excessive. The Court of Appeal found that the administrative detention to which Kuoth had been subject – a sixteen-month involuntary civil detention under public health powers – constituted “imprisonment”^[5] for the purposes of the subsequent criminal sentence. In resentencing Kuoth, the Court was unanimous in its finding:

[T]he appellant has already served what amounts to a term of imprisonment for this offending. It is true that he was under civil detention and not in a gaol. But, plainly enough, the essence of imprisonment is the deprivation of liberty. That is precisely what this man suffered because of the – perfectly appropriate, it seems – imposition of successive isolation orders on him.^[6]

Here, the Court recognised the disciplinary intervention imposed by public health authorities as mitigating the punishment imposed under the criminal law. The civil or administrative detention of Kuoth was deemed to be “a very significant punishment, albeit for public health purposes, in respect of this very conduct”.^[7] The recognition of the deprivation of liberty by administrative isolation orders as amounting to imprisonment in mitigation of a criminal sentence is a new and interesting development in an otherwise well-recognised criminal sentencing principle.^[8] It is also an uncomfortable finding for public health practice, which would deny that detention of this kind is in any way punishment but rather is part of a process of “behavioural change”.^[9] This discomfort foreshadows the significance of this case. Kuoth, Lam v R reveals a mutual dependence of public health and criminal law. seen in this way, these otherwise distinct forms of rule are rendered in what follows as ‘twin powers’ of modernity, rather than utterly distinct or at odds, but instead ultimately interrelated forms of rule in relation to HIV-transmission.

Neither criminal law nor public health scholars have yet adequately addressed the clear structural and operational relationship between, on one hand, criminal law and criminal procedure, and on the other, public health approaches and procedures for the control of HIV-transmission. This article outlines the finding in Kuoth, Lam v R in order to propose the finding as a clear instance of the highly dynamic, relational nature of public health and criminal law. What is at stake here is not only a clear understanding of the relationship itself, but also how criminal legal and public health practices come to construct and to frame responsibility, HIV and the social practices of public health and legal responsibility attribution in this context. Following the work of Kane Race, a study of Kuoth, Lam v R highlights the work which both public health and criminal law as framing practices ‘do’; that is to understand their “performativity - their full range of worldly implications and effects”.^[10]

To begin, I contextualise the case of Kuoth, Lam v R by briefly discussing elements of HIV-related law which commonly operate in jurisdictions like Australia, including the criminal offences associated with transmission and the administrative provisions related to public health regulations and powers. I then trace how the literature’s dominant vision of criminal law leads to the construction of criminal law and public health as separately constituted, independent powers, the operation of which are at odds with one another. Whilst scholarly literatures are correct to take a critical stance towards criminal law, the dominant account provided of the criminal law and its relationship to public health practice itself requires critique. To do this, I draw principally upon the work of Foucault and his recent interpreters, Ben Golder and Peter Fitzpatrick,^[11] who articulate the nature of law as indeterminate, responsive, and interwoven with other forms of power. Based on this characterization of the law, I show how Kuoth, Lam v R dramatizes the interaction between, and mutual constitution of, criminal law and public health. The case in fact provides the first basis for an extended critique of the conventional, dichotomous picture of the law’s relationship to public health; a view which sees these two forms of practice as ‘intersecting’, when in fact, they are better described as ‘integrated’. In this vein, the case of Kuoth, Lam v R renders visible the specific contradiction between a public health discourse which, on the one hand, denies the suitability of criminal law, but on the other hand, participates in the referral of those ultimately recalcitrant subjects whom it fails to adequately discipline into the jurisdiction of criminal law. Here, in this most important of contexts, criminal law is not separate from public health. Public health is, rather, replete with criminal law. From my reading of Kuoth, Lam v R emerges a vision of criminal law and public health that highlights the dependence of each upon the other, with criminal law dependent on powers external to itself to provide definite content to its otherwise empty character, and with public health buttressed by criminal law’s role as a ‘limit’, in contrast to which public health gains an imprimatur for its knowledge claims and establishes its authority.

Lam Kuoth and HIV-related Law

The Victorian Court of Appeal narrated the details of Kuoth’s trial at first instance.^[12] In summary, whilst receiving treatment for tuberculosis in late 2006, testing had revealed that Kuoth was HIV-positive. In evidence, it was put that he had initially denied sexual contact with his partner, but had later disclosed unprotected sexual contact with a second person. The sentencing judge recounted that approximately one month later, “you were informed through an interpreter of the diagnosis and the risks involved... [t]he depositions show that you were unwilling to come to terms with the diagnosis.”^[13] A series of treatment appointments were followed by non-attendance at subsequent appointments scheduled for early 2007, which were “arranged to again explain to you the situation you were in, caused by your HIV-positive status.”^[14] On April 4, 2007, a fortnight prior to the criminal offence, the defendant had been subject to an order by the Victorian Chief Health Officer, requiring him to disclose his HIV status to any sexual partner and to use condoms during sexual intercourse. It was after this order was made that Kuoth engaged in sexual intercourse on two occasions, separated by time but in relation to the same person, without the use of a condom and without disclosing his HIV status.^[15]

Shortly after the commission of Kuoth’s criminal offence, the Victorian Chief Health Officer issued a 28-day Isolation Order which began on 27 April, 2007. The isolation order was renewed every 28 days for a total of sixteen months. The judge at first instance recounted that, some eight months after the initial order, the Chief Health Officer made a further isolation order which detained Kuoth at the Royal Talbot Hospital “because you [(Kuoth)] continued to deny having had sexual intercourse with the complainant, and that you lacked candour, you were a continuing health risk”.^[16] The isolation order was total. Kuoth was required to be isolated in an empty ward, directly supervised at all times by one nurse and two security guards; he had no visitors; and any movement required prior approval of the Chief Health Officer. After almost four months, Kuoth was then relocated by order to a suburban house, where he remained under 24-hour surveillance, with staff monitoring his movements “assisted by video surveillance”.^[17] In May 2008, there was a relaxation of the order, allowing for five minutes per day of indirectly supervised time.^[18] Visitors still had to be supervised, and two security staff had to be present at all times for participation in study or attendance at job interviews.

Kuoth’s case was heard before the Victorian County Court with sentencing on August 11, 2011. Kuoth himself was not charged with the then-available HIV-specific offence of intentionally causing a serious disease, but instead was found guilty of reckless endangerment of a person.^[19] This is an offence of general application, which relies on the offender having recklessly engaged in any form of conduct that places or may place another person in danger of serious injury. In this instance, HIV transmission has been interpreted to represent a form of injury sufficient enough to warrant the epithet ‘serious injury’.^[20] In his remarks on sentence, Connellan J noted that the reckless endangerment of “another to the risk of HIV through sexual intercourse is an altogether much more serious matter than the maximum penalty [of five years imprisonment] applicable here would seem to indicate”.^[21]

The decision in Kuoth, Lam v R to render public health administrative detention as able to mitigate criminal punishment is, despite its novelty, an extension of an otherwise very well established principle of criminal sentencing law, namely mitigatory extra-curial punishment.^[22] However, this congruence between public health isolation orders and criminal sentencing practice—the formal integration of administrative detention into the domain of criminal punishment—is in tension, if not outright conflict, with the theoretical differentiation between these two forms of law and practice. Notably, such a finding sits uncomfortably with authorities on the nature of administrative power to detain in the migration and asylum context, namely, the nature and legality of indefinite administrative detention of ‘unlawful non-citizens’ as well as those which apply to serious sex offenders in the jurisprudence emanating from Al-Kateb v Godwin^[23] and Fardon v Attorney-General (Qld)^[24] respectively. The decision also sits uncomfortably with a tradition in public health scholarship of differentiating between depravation of liberty for the purposes of quarantine and for punishment; the preferred forms of public health activity tends to favour more subtle forms of power and coercion.

Despite these tensions, the use of laws of a general application, or through more specifically targeted communicable disease control measures, is not a particularly new intervention in the lives of citizens.^[25] Such laws have been subject to debate throughout the history of state engagement with infectious disease in common-law jurisdictions.^[26] So too, in the particular instance with which this article is concerned, it is clear that the congruence of law and communicable disease remains a source of tension, with the conclusion of other writing on Kuoth, Lam v R calling the case “troubling, because of the overlap between the reckless conduct [criminal] offences and the public health ‘behaviour change’ process”.^[27] To clarify the tensions inherent in conflating public health detention with criminal punishment, I now situate the decision in Kuoth, Lam v R in the context of both criminal and public health powers which relate to HIV transmission in Australia.

Criminal Law and HIV Governance

In Australia, and in other jurisdictions, the law accepts a person with HIV as a site for a range of coercive and other measures relating to their behaviour. However, recent years have seen the emergence of an awareness of a specifically criminal legal engagement with infectious disease, particularly HIV. Because of HIV’s relatively recent emergence, HIV transmission had not previously fallen within the purview of the criminal law. This chronology may have reinforced the impression that the engagement with the disease transmission event of HIV specifically was wholly or substantially different to criminal law’s engagement with disease transmission in the past. This is in many ways true, made obvious by the enactment in particular contexts of HIV-specific criminal offences. On the other hand, the common law has been engaged with disease transmission in the common law tradition for at least two centuries with the early 19^th Century case of R v Vantandillo^[28] or the Contagious Disease Acts of the 1860’s,^[29] marking particularly well-known engagements by the British State with disease transmission through legal means. Such legal action has been contested by a significant body of literature both scholarly and professional.

Whilst there are a range of specifically criminal offences which are theoretically available in the case of HIV transmission, the offences which are prosecuted in the context of HIV transmission are various forms of assault and endangerment charges. These offences rely upon HIV transmission having occurred, or, in less serious circumstances, having created a significant risk of HIV transmission.

Victoria, the state in which Mr Kuoth was charged, retained the last HIV-specific criminal offence in Australia. The offence, found at s19A of the Crimes Act 1958 (Vic), was repealed in mid-2015, removing the form of intentional assault, namely, intentionally causing a very serious disease.^[30] Unlike forms of this offence found in other Australian jurisdictions, the Victorian offence narrowly and explicitly defined HIV as the only ‘serious disease’ to which this offence applied in the text of the statute.^[31] The approach in other jurisdictions is exemplified by the offence in New South Wales (NSW), where an assault offence of general application characterises HIV as a grievous bodily disease that is said to constitute a sufficient basis for assault.^[32] This offence does not narrow the definition to HIV alone within the language of the statutory offence definition itself, but through the definition of key statutory language. In this way, it captures HIV transmission within a more general criminal offence, rather than a HIV-specific offence. This is said to reflect current ‘best practice’ in this area.^[33] In that context, the Court has not yet had an opportunity to examine whether any other disease might be understood to constitute a grievous bodily disease.

Public Health and HIV Governance

Just as Kuoth was implicated in criminal legal proceedings, so too was he implicated by public health practices and powers. I understand ‘public health’ to include both explicitly ‘legal’ mechanisms and other social, medical and cultural practices; public health activity has both a legal and non-legal guise.

Public health law, as a small sub-set of public health practice more broadly, is a diffuse area of legislation, regulations, codes and protocols which works to achieve public health objectives and, as such, presents an identifiable body of laws and regulation.^[34] The laws cover areas as diverse as sewer and civil engineering requirements, sanitation, and food and medicine safety, as well as communicable disease control. Public health law is a mix of largely legislative and regulatory powers exercised by the state, and by other participants, which aims to safeguard the health of the population as a whole rather than individuals. This includes the traditional public health concerns of public sanitation and quarantine, and now extends far beyond to include food labelling, tobacco control and other areas, predicated on the perception that law can be used as a ‘tool’ to achieve public health outcomes of reducing illness and death and of promoting health.^[35] What unites these diverse forms – at least in the form of public health practice which concerns itself with the human subject directly rather than the organisation and regulation of sanitation or urban planning - is a unifying function of “providing behavioural norms against which individuals are measured...persuading people to voluntarily submit to the goals of the state and other health-related agencies”.^[36] Of central importance to the control of HIV-transmission in the current context are those state powers found in long-established public health legislative instruments, such as the various State and Territory public health acts.^[37] These powers have various scales of coercive effect, namely the power to compel in some way: to restrict or direct the free movement of individual persons or those found in a geographic area; to order medical testing, interventions or treatment; or to permit administrative detention or other forms of physical isolation.

The state’s powers in relation specifically to communicable disease control are administrative powers utilised by the state through public health officials. There are a number of specific powers relevant to communicable disease control in each Australian jurisdiction, many of which are common across national jurisdictions in the common law tradition. These include general or broad powers granted to the executive to deal with public health risks,^[38] which are usually limited to a defined geographic area of the jurisdiction; power to declare and/or deal with public health emergencies (either alone or associated with a more general state of emergency); ^[39] the closure or regulation of public premises; ^[40] and a series of powers related to proscribed medical conditions that are identified as posing a risk of “substantial adverse impact on the population”^[41] as one legislative instrument puts it.

Specifically HIV-related public health law establishes notification, information-sharing and counselling requirements for medical practitioners, health system organisations and a range of other officials.^[42] A variety of jurisdictions maintain legislatively authorised public health registers of diagnoses and/or names of those living with specified conditions or disease such as HIV.^[43] In these ways and others, public health laws draw into the frame members of the community as well as health practitioners and non-government health service organisations as participants in the administrative governance of HIV. Specifically in relation to those living with HIV, many jurisdictions establish a duty to disclose HIV-positive status prior to sexual intercourse,^[44] and establish the power to issue public health orders for the executive and a range of delegates. These orders allow the executive to compel a person to undergo medical examination, testing, and in some instances undertake treatment or procedures.^[45] The orders also provide for various forms of restriction on free movement, association and activity, including physical isolation or detention.^[46]

These powers associated with public health are linked to long-standing spatial strategies and technologies of communicable disease control, namely quarantine and isolation.^[47] The ability of public health powers to restrict liberty are at least as significant as those found in police and criminal procedural powers. Yet, the critical reception of criminal legal engagement with HIV transmission has been based on an assessment of it as fundamentally different from public health activities and powers, whilst incompatible with their operation. This attempt to structure these powers separately, fails to account for the significant homogeneity, and I argue, their far more interdependent nature and operation.

In what follows, I describe this interdependence by exploring the work of Michel Foucault on law as interpreted by Golder and Fitzpatrick. In so doing I highlight the shared contours of ‘Foucault’s Law’ with that of public health literature’s dominant understanding of criminal law.

Interdependence of Criminal Law and Public Health

Kuoth, Lam v R renders visible a form of quasi-jurisdictional dispute between public health and criminal law. The tracing of Lam Kuoth’s passage between public health and criminal law in the case highlights the contradiction between a public health discourse which on the one hand denies the suitability of criminal law, but on the other hand participates in a variety of detention practices and holds open the possibility of referral of those ‘ultimately recalcitrant subject[s]’^[48] whom it fails to adequately discipline into the jurisdiction of criminal law. This disciplinary referral of Kuoth, Lam v R is not the only relationship, however, between public health and criminal law. Rather, as I develop over the pages which follow, despite the assumption of a dichotomous view by writers in the public health literature, both public health and criminal law play significant roles for each other well before this final stage of referral: criminal law relies upon public health for its vocabulary, concepts, knowledge and schemas, whilst public health relies upon law to reinforce its knowledge claims and jurisdiction. These claims are presented below, supported by my use of the post-Foucault literature around law and power in modernity. In what follows, public health writers will be seen to conceptualise criminal law as a negative, limited, circumscribing, command-based form of power. They present a view that criminal law and public health are irreconcilable. What these writers miss, however, is what new interpretations of Foucault allow us to see: law is both negative, limited, circumscribing, and command-based but also dynamic and responsive; it is not ‘one or the other’. In so far as the criminal law is described as a limited, negative force, the literature provides an accurate description. However, following the reinterpretation of Foucault’s own view of Law as both negative and dynamic and ever responsive, such a description is, at best, only half right.

To more fully expose the shared contours of these two engagements with law, I provide in the following paragraphs an overview of some of the principal ways in which criminal law is described in the HIV-transmission context. This is a review which focuses on the dominant conception. To be sure, there are a range of plural and rival ways in which the scholarly literatures frame criminal law and HIV transmission.^[49] Whilst I discuss those, I am, however, interested in drawing to the fore the dominant conception deployed in the literature.

The leading Australian text on public health law makes clear its own dichotomous reading in relation to HIV and criminal law. It asks us to see the importance that public health and criminal justice processes not be “blurred” ^[50] but rather, that the decision making processes to “refuse bail and detain a person in custody pending...trial should be kept quite separate from a decision to detain the person under public health legislation and for the purposes of protecting public health”.^[51] Here, criminal law is clearly still part of the social practices associated with HIV transmission, despite continued and principled opposition to its attachment or mixing with public health practice. Matthew Weait in his Intimacy and Responsibility: The Criminalisation of HIV Transmission provides the most sustained single-author treatment on criminal law’s association with HIV transmission. ^[52] Writing in the UK context, Weait asks ‘in what circumstances, and on what basis, should those who transmit serious disease to their sexual partners be criminalised?’^[53] Weait’s response to this question is expressed by his choice of epigraph for his work:

The criminalization of HIV has been a strange, pointless exercise in the long fight to control HIV. It has done no good; if it has done even a little harm the price has been too high. Until the day comes when the stigma of HIV, unconventional sexuality and drug use are gone, the best course for criminal law is to follow the old Hippocratic maxim, ‘first, do no harm.’^[54]

Weait’s complex analysis is structured by a contrast between the three figures of criminal law, public health law and public health practice. He is one of the few authors who draws into the frame criminal law and public health law in separate analyses. The basis of this analysis is the contention that “HIV and AIDS are, and should be understood as, public health issues first and foremost, rather than as problems necessarily capable of effective legal resolution through the criminal law.”^[55] He argues further that in this constellation of legal and extra-legal approaches to HIV and AIDS, neither is public health law necessarily something which should have any purchase upon events of HIV transmission. HIV is therefore imagined as an object of public health practice, rather than one upon which the criminal nor public health law has any purchase.

For Weait then, public health practice, public health law and criminal law are separate and separable. Public health law is differentiated from public health practice, at least in part, by their different relationships to a voluntary engagement paradigm with public health practice’s emphasis upon agency and shared responsibility.^[56] Public health in its specifically legal guise is “coercive” and it is this coercive potential which represents a threat to the human rights of those living with HIV and AIDS, and concurrently threatens the effective management of the epidemic.^[57] Public health law, Weait suggests astutely, is implicated in criminal justice practice: “rather than a soft option [public health law may] amount to criminalisation by the back door.”^[58] On each of these counts, as shall be seen later, I am in firm agreement with Weait. However, the view of public health practice as separable from its legal instantiation in public health law, is something which covers-over the implication of public health in its extra-legal guise with its legal instantiations. This particularly so when the differentiation is based upon public health’s legal guise being distinguished from public health practice based on its allegedly unique coercive nature. If differentiation is possible between its two guises, coercion is not a suitable delimiter. Rather, public health practice and public health law are both coercive. I find that both public health’s legal and extra-legal guise are continuous with the logic and activity of each other, evidenced perhaps most clearly in their homogenous form and formal integration in public health guidelines for the ‘management’ of those who place others at risk of HIV transmission which I discuss at length later.

It is the overarching representation of criminal law’s ‘character’ and its relationship to public health practices which I focus upon here. Weait’s treatment of criminal law specifically is nuanced, his analysis of criminal law’s internal working particularly so. The relationship of Weait’s criminal law to both public health practice and public health law is separate and separable. For Weait, criminal law is a “conservative institution” one which functions “not to liberate but to repress, censure and condemn”.^[59] Criminal law is a power which “precludes us from thinking differently, laterally and imaginatively about the very conduct, consequences and people that are the objects of its repression, censure and condemnation”.^[60] Thus criminal law is both a negative, limited and determinate power, but one which is inflexible, unchanging and unresponsive to those different, lateral and imaginative ways of thinking. It is closed to its outside, impenetrable and closed to powers and discourses outside of itself.

To turn again to the Australian context, the lengthiest Australian contributions to the literature of the criminalisation of HIV transmission are found in the various articles collected by Sally Cameron and John Rule in The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality.^[61] Cameron and Rule themselves, in their co-authored contribution, consider the overarching situation of criminalisation of HIV transmission in Australia. Like Weait, criminal prosecution brings public health and criminal law “into stark relief – and those points of intersection are problematic.”^[62] Like Weait, they situate their inquiry as stemming from an understanding that public health practice and criminal legal responses to HIV are informed by differing rationales: “...public health and criminal law responses to HIV might be understood as being informed by different (at times opposing) rationales”.^[63] Their view of public health practice differs from that provided by Weait, in that they do not differentiate public health practice from public health law. Instead, they focus on differentiation between public health practice and criminal law:

Public health responses consider the norms of human behaviour and the context in which sexual relationships occur. Criminal law largely removes context and the ‘meaning’ of those sexual relationships to both parties in its consideration of harm. Public health talks of mutual responsibility: Criminal law attributes blame to one party only.^[64]

This contestation of differing rationalities imagine HIV transmission in a series of problematic ways for the authors, particularly at the intersection of these differing practices,^[65] where the language, knowledge and techniques of public health are translated into the jurisdiction of the criminal law. This intermingling and blurring of these two rationales reinforces their difference for these writers. They ask, citing Weait, if “the way in which the ‘harm’ of HIV is constructed and reproduced through [criminal] law . . . is no different from being beaten or poisoned. And yet is this the experience of infection?”^[66] Such differing rationales underline the separation and difference of these two forms of rule:

...what of a person’s decision to have an HIV test being used against them later in a criminal trial as proof of their HIV status and (given requirements on GPs to inform patients of their responsibilities) their awareness of their obligations to prevent HIV transmission? What of therapeutic/treatment notes being subpoenaed and used as evidence against a former (or ‘current’) patient? What of people’s fear of prosecution reducing their honesty with health care providers, and subsequently reducing the effectiveness of their treatment?^[67]

In that vein, the writers conclude that “criminal prosecutions undermine public health’s HIV prevention and treatment response and, conversely, public health procedures undermine the appropriateness of a criminal law response except in very unusual circumstances”.^[68] This statement confirms not only the difficult ‘fit’ between public health and criminal law but more importantly, it describes a mutual incompatibility.

This theme of mutual incompatibility is a more nuanced rendering than provided by other descriptions. It speaks directly of a form of instability-in-relationship, rather than a kind of unilateral incompatibility, where the presence of criminal law is problematic for public health practices alone. The result of the incompatibility may remain an expulsion of the criminal law for Cameron and Rule. However, even such an expulsion, importantly, is acknowledgement of a relation. Public health and criminal law as might remain fundamentally conflicted in their description, but they are no longer separate. Their incompatibility is now mutual, and takes on a more active, shifting form than the more simple binary-conflict model of other writers. It is for this reason that the quasi-jurisdictional language of Cameron and Rule is apt; criminal law is described as existing “outside the HIV strategy”,^[69] by Cameron and Rule. They are not alone in this conceptualisation. Weait also writes of “an approach to public health which deploys law” ^[70] as one might do across a boundary, border or divide. This is to see criminal law as outside a domain of HIV transmission which is understood as properly within the jurisdiction of public health.

The ongoing theoretical conversation about Foucault’s view of law I believe sheds light upon the dominant view of criminal law’s relation to public health in the field of HIV-transmission. Reading Foucault as Golder and Fitzpatrick suggest, picks up suggestive strands from the existing literature, but sees criminal law and public health reconceived, constituted in a dependent, co-determined and mutual reliance for both the ‘identity’ and ‘content’ of both of these workings of power. This view contrasts with the dominant view of writing on HIV transmission and law, which instead receives criminal law as a working of power which “precludes us from thinking differently, laterally and imaginatively about the very conduct, consequences and people that are the objects of its repression, censure and condemnation”;^[71] a negative, limited and determinate power, inflexible, unchanging and unresponsive, closed to its outside, (mutually) incompatible with public health.

In what follows, I apply this interpretation of Foucault on law to examine how law and public health rely on one another. Whilst Foucault did not engage with HIV-related criminal law directly, Golder and Fitzpatrick’s interpretive and exegetical scholarship on his work applied in this novel setting, provides significant insight of this field of public health and criminal law. First, however a more developed view of the reception of Foucault’s thinking on law is required.

From Intersection to Integration: Lessons from Foucault for Criminal Law and Public Health

In the literature which examines Foucault’s own understanding of law, scholars have argued that Foucault had described law as having been ‘expelled’ from the operation of power in modernity.^[72] This view interprets law in Foucault’s writing either as an anachronism of the past to be replaced by the emergence of discipline or bio-power, or grants law a continued existence, but one subordinated to those very same forms which power takes. The interpretation of the nature and place of criminal law drawn from HIV-related criminal law literature is a strikingly similar conceptualisation; as will be seen, it is law understood as expelled or at least instrumentally subordinated to the biopolitical aims of public health.

In their joint work, Foucault’s Law, Ben Golder and Peter Fitzpatrick question the straightforward reading of law which motivates this ‘expulsion thesis’,^[73] where “old forms of law and sovereignty become decreasingly important as a site, and mode of operation of power”.^[74] They begin by tracing some of the same key textual sources which are used to build the view of the expulsion thesis. Within those sources, law is understood as a negative, circumscribing, command-based form of power, rather than a form of power which is marked by a working through of a more productive modality. This vision of power as fundamentally productive is perhaps the most significant marker of Foucault’s description of power. In these writings, however, Foucault begins to differentiate the working of law, for law is ‘in no condition to produce, capable only of posting limits, it is basically anti-energy’.^[75] In this way, law is a power unlike the newer forms of productive power (discipline and bio-power). Ill-suited to the contemporary structures of social life, unable to render the previously anonymous masses visible and subject to control, law is a limited power. Law as a form of power is “poor in resources, sparing of its methods, monotonous in the tactics it utilises, incapable of invention, and seemingly doomed always to repeat itself”.^[76]

In this narrativisation of Foucault’s work, the expulsion of law is made complete with the rise of discipline and bio-power. Law is expelled from the operation of power in modernity, and this ‘expulsion thesis’ has been a dominant frame of our understanding of law’s nature and role in modernity in the post-Foucault literature for some time. That Foucault had charted such a falling-away of law in modernity has ample textual warrant. Foucault described newer methods of power, “not ensured by right but by technique, not by law but by normalisation, not by punishment but by control, methods...that go beyond the state and its apparatus”.^[77] This is to see law distinguished from these newer forms of power in its operation and character. The varied relationship to ‘rule’ renders each of these powers alien to one another in the language of Foucault. In Foucault’s own words, the discourse of discipline is “alien to that of law; it is alien to the discourse that makes rules a product of the will of the sovereign”.^[78] Further, the disciplines “define not a code of law, but a code of normalization,” which relies upon the human sciences and clinical knowledge rather of law for their content: “the jurisprudence of these disciplines will be that of a clinical knowledge.”^[79] In a repeated refrain, law is differentiated from productive forms of power.

Golder and Fitzpatrick trace the line of Foucault’s writing which seems to describe - in the clearest terms - the diminishing importance of law in a society “in which the juridical is increasingly incapable of coding power”,^[80] where we have entered into a “phase of judicial regression”,^[81] and where these new forms of power are positioned as “exactly the opposite of [a] monarchical power”^[82] which Foucault had characterised as operating (often violently) through law. These newer forms of power are described by Foucault as ascendant but also, in terms of their relationship to law, as “counter-law”^[83]—or as in the case of discipline, the “exact, point-for-point opposite of the mechanics of power that the theory of sovereignty described”.^[84]

We see in this reading of Foucault not only an expulsion of law over time, but also an allied description of law’s own nature and operation. The law of the expulsion thesis is a mechanistic, negative, limited and determinate law,^[85] tied to the sovereign/state whilst at the same time being displaced by another form of power. This combination of the reduction of the importance of law over time which is rendered as “negative, limited, mechanical and determinate”,^[86] is the kernel of the so-called ‘expulsion thesis’ found in the post-Foucault literature.

Golder and Fitzpatrick describe the expulsion thesis, in summary form, as interpreting Foucault as having seen law as being “essentially negative (and violent) in its mode of operation; historically tied to monarchical sovereignty and, finally, with the transition to modernity, overtaken by more productive and effective technologies of power which invest it and instrumentally subordinate it to their operations”.^[87] In many ways this is the essence of the law of the HIV-criminalisation literature mirroring the shape of its contestation of criminal law. So too, does the expulsion of criminal law by the HIV-criminalisation literature follow the same patterning, expelled because of its inability to function according to the dominant form of power embodied by public health practice. Criminal law is characterised in the dominant framing as a working of power which functions “not to liberate but to repress, censure and condemn”.^[88] It is a negative, limited and determinate power, inflexible, unchanging and unresponsive, closed to those discourses and powers outside of itself.

Due to these shared contours between the expulsion thesis and the dominant view of criminal law in the literature, Golder and Fitzpatrick’s reinterpretation of law in the work of Foucault, and in its operation in modernity offers potential for a reinterpretation of criminal law, its relationship to public health practice and the event of HIV transmission. In re-reading Foucault’s view of law, Golder and Fitzpatrick grant that while law remains operative in modernity, it is instrumentally subordinate to powers outside of it. From this point, they are able to describe a re-reading of Foucault on law and in what follows, I apply this reading to the specific situation of public health and criminal law in Kuoth, Lam v R. This revised ‘Foucault’s Law’ is a law which is fixed and determinate and is at the very same time is a responsive law. It is a law which is always-in-relation to powers outside itself, where the law works to buttress the knowledge and jurisdictional claims of discipline, whilst discipline works to provide law with its content: vocabulary, concepts, knowledge and schemas for understanding risk, human subjects and behaviour. It is thus a law subordinated to other powers, be it the juridico-discursive power of the monarchical sovereign or that of discipline and bio-power. At the same time of this subordination, it is also unstable and surpassing, unable to be wholly subordinated (i.e. controlled) by any one power because of this very openness to subordination. These are, for Golder and Fitzpatrick, each “integrally related dimensions of the very same law, fractured and irresolute though it seems at first to be”.^[89] It is a law which “is ‘made up’ of the constituent antinomy in which it is both utterly dependent yet still surpassingly responsive”.^[90]

In the sections which follow, I claim that like ‘Foucault’s law’, criminal law and public health practice in the field of HIV transmission are not mutually incompatible, but rather, are co-constituted. In more recent work in this vein, Ben Golder has highlighted how criminal law is in fact in a similarly productive relationship with contemporary bio-politics, tracing “how bio-politics kills”.^[91] In this work on the Homosexual Advance Defence – a controversial variant of the defence of provocation – criminal law is seen to function as a bio-political technique for differentially “distributing death within a governable population”,^[92] criminal law operating in a bio-political register thought of usually only in terms of the maximisation of life. How this perspective on Foucault might shed light upon the specific intersection of criminal law and public health which is the focus here is an urgent task then for those concerned for all that is at stake in this field.

Law’s Reliance on Public Health for Vocabulary, Concepts, Knowledge and Schemas

In their critique of the expulsion thesis, Golder and Fitzpatrick describe what they term law’s responsiveness.^[93]This is a vision of law open to “new possibilities, new instantiations [and] fresh determinations”.^[94] It is a riposte to a characterisation of the law as only determinate and fixed, a law that is closed off from the world, a positivist, autonomous and hermetically sealed vision of law. Instead, as we saw above, in the reformulating of Foucault’s vision of law, that law was always in relationship with other powers. In its openness to other powers, law is thus both a law subordinated to those other powers – be it the juridico-discursive of the monarchical sovereign or that of discipline and bio-power – whilst at the same time, because of this very same openness to subordination, forever unstable and surpassing unable to be wholly subordinate to any one power.

This is achieved by the particular strategy of law’s buttressing of the epistemological basis and knowledge claims about the subject of disciplinary and bio-political power. On this count, it is the ‘norm’ alongside that provides the fundamental basis of the nature and operation of newer forms of power. It is from the human sciences that the norm is derived. The norm is, for instance, the ‘engine’ of discipline’s work to form and fabricate the disciplined subject.^[95] The disciplines are then dependent upon the human sciences and their production of knowledge in order to operate through the effect of norm-referencing. According to Foucault, we are by the application of the truths of the human sciences “judged, condemned, forced to perform tasks, and destined to live and die in certain ways by discourses that are true, and which bring with them specific power-effects”.^[96] Yet, despite the productive uses to which such norm-referencing is put, the core epistemological issue of immanence haunts the social sciences’ claim to ‘truth’; social-scientific knowledge which forms the basis of disciplinary intervention is somewhat groundless.^[97] In the face of this difficulty—where the ‘true’ status is, for Golder and Fitzpatrick “never entirely and convincingly made out”—it is here where the law provides a “compensatory justification and authority for the incomplete epistemological project of disciplinary power and its knowledge claims about the individual and society”.^[98]

Such exercise of the law’s jurisdiction is seen also in the work of contemporary preventive detention regimes in Australia for serious sex and serious violent offenders. These regimes utilise law to confirm the status of disciplinary power to interpret the world with authority. In these proceedings, law works to buttress discipline’s legitimacy and to override the epistemological deficit at its heart.^[99] The law is required to provide authoritative review of psychological review of the risk of re-offending by those convicted of a serious sex offence. All Australian post-custodial preventive detention regimes for serious sex offenders mandate evidence of risk be provided by psychologists or psychiatrists, requiring he Court, as in the case of NSW, to consider “the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence”.^[100] The construction of the process allows the substance of psychological assessment of risk itself to be left essentially unquestioned whilst reviewing the construction of post-custodial detention or supervision for overreach or excess. In this process, law asserts in own power, but does so in order to constitute and re-inforce disciplinary power:

...by purporting to exercise its supervisory jurisdiction only over the more egregious aberrations, abuses and excesses of disciplinary power, law confirms the basic claim at the heart of disciplinary power to adjudicate on questions of normality and social cohesion. In doing so, it inscribes the disciplinary project in the very nature of things, ‘confirming’ its tenuous grasp on a scientifically comprehended and disciplinarily administered world and simply acting to correct its application in those cases where something goes amiss. Thus, in confining its legal supervision to the contested periphery, the instability at the very core of disciplinary power...is left unquestioned and hence reinforced.^[101]

So too in the case of HIV-related criminal law, we see that at the most basic level, the criminal law remains replete with the knowledge, language and concepts of public health. In case after case, the trial judge adopts and relies upon the somewhat unique vocabulary, concepts, knowledge and schemas of public health not simply in describing the disease, but in understanding its impact and the moral weight of transmission. In Kanengele-Yondjo v R,^[102] for example, the trial judge, in sentencing directly, refers to the concepts of medical evidence, stigma, population health and disease-based harm—thus through adoption in both trial and appeal confirming and approving of the utility and veracity of these concepts in describing the ‘truth’ of the situation:

Medical evidence discloses that they will experience depression and anxiety arising from concerns about loss of physical function and potential deterioration in physical appearance; dramatic wasting due to HIV or due to medication side effects; physical disfigurement due to cancer of the face or body; a variety of losses, work, mobility or relationship; and ultimately death and dying issues...Many of those factors are now being experienced by both victims...Further the risk of the spread of HIV has enormous and dire implications for the health and welfare of the general community and I consider this to be a seriously aggravating factor in these cases. ^[103]

So too in Kuoth, Lam v R does the court confirms the central claim of disciplinary power to construct normality and to judge deviations from it, where it intermingles civil detention with criminal punishment, explicitly recognising the appropriateness of such civil isolation orders and the public health purposes to which they are aimed. Recall again the words of Maxwell P in his remarks:

[T]he appellant has already served what amounts to a term of imprisonment for this offending. It is true that he was under civil detention and not in a gaol. But, plainly enough, the essence of imprisonment is the deprivation of liberty. That is precisely what this man suffered because of the – perfectly appropriate, it seems – imposition of successive isolation orders on him...a very significant punishment, albeit for public health purposes, in respect of this very conduct.^[104]

Voices in the scholarly literatures like Rush, Tomsen or Klein who imagine framings of law other than the dominant binary framing are not blind to this sort of interplay. Alana Klein points to a “police and prosecutorial deference to and coordination with public health”^[105] as part of her proposal for a hybrid model of criminal law. So too does Stephen Tomsen astutely render one effect of law’s confirmation of the status of otherwise malleable and changing knowledge upon which public health relies. There is a cost associated with this buttressing effect of law. Tomsen argues that the “reliance on peripheral claims in law”^[106] might come to be used to “establish behavioural boundaries”^[107] which conflict with the goals and activity of public health. The knowledge claims upon which public health relies might be “overridden with legal cycles of complaint and conflicting arguments and scientific division about medical advice given to patients, the timing and meaning of sero-conversion, viral loads and phenotypes, statistical risks of practices, the natural history of infections and each patient’s prognosis.”^[108]

Similarly, there is a risk of the legal claims coming to further enforce public health claims, as we see in the dynamic of Kuoth, Lam v R. This is a potential issue highlighted by Klein, who for her part, points to the risk that those who fail to comport themselves to the demands of public health practice might, in a more interrelated or hybrid system, will cause criminal sanction to be perhaps more harsh.^[109] She is clear that an integrated or hybrid system, which she herself proposes, renders possible a kind of net-widening effect, where “all aspects of a person’s behaviour – not just risky sex – under scrutiny: suddenly, the law may be looking at whether a person attends counselling sessions, manages to live in stable conditions, even stays off drugs – all with the possibility of criminal sanctions in the background.”^[110] Weait’s work too touches on this relationship in the context of the United Kingdom, where he cites the use of phenotype testing and analysis having been adopted by the UK courts.^[111] Here the courts are working, albeit not always successfully, to integrate the knowledges and technology of public health, medicine and HIV testing into its very operation. The importation of public health into the courtroom highlights the overriding of the separation of law and public health in the literature and critiques the view of the law as mechanistic. This overriding of the separation itself then causes extraordinarily difficult issues for criminal law doctrine(s), and thus the ability for criminal law to maintain its grasp upon HIV. The law relies upon phenotype testing, expert evidence from HIV public health officials, ^[112] and epidemiological techniques in its attempts to understand HIV within the bounds of the criminal legal doctrine of causation. For Peter Rush, this openness of law is communicated in the lack of fixity to the meaning of HIV, as the meaning of HIV is continually displaced:

HIV transmission is situated in a plural field of legal signification – disease, drugs, needles, substances, bandits as much as assault, rape, murder and endangerment. What the placement of HIV transmission in criminal legislation illustrates is that criminal law and the criminalisation process unceasingly tries to pin down the meaning of HIV: to fix its meaning. Yet it is continually being displaced by rival traditions in the ordering of criminal law, as much as by references to the social, the medical, the cultural and so on. ^[113]

Rush notes this same need for the criminal law to make sense of HIV by taking into itself knowledges, vocabulary and concepts—from domains such as public health—to construct its own legitimacy:

...in making sense of HIV and its transmission, the discourse of criminal law repeatedly finds itself using a rhetoric that depends for its meaning and legitimacy on other forms of knowledge: whether medical, epidemiological, sociological, or even the general cultural repertoire of images about drugs, bandits, grim reapers, sexual practices, and so on. ^[114]

It is this borrowing of the core epistemological tools with which public health makes ‘sense’ of HIV, which shows again that law and public health exist in a relationship closer and more co-determined than might at first be apparent. This acceptance of public health knowledge and epistemology into the criminal courtroom is an example of this open and responsive law described above by Golder and Fitzpatrick. In relation to HIV-transmission offences, this openness of criminal law to public health and other knowledges outside of it highlights again not only the responsiveness of criminal law, but also the work that criminal law performs for public health. Public health replies on the “production of scientific knowledges of ‘man [sic]’.”^[115] However, such knowledges require operationalisation; it is essential for the operation of public health that social-scientific knowledge is operationalised to create knowledge of the individual and of the population, a process achieved in-part by and through law.

Public Health’s Reliance on Law to Manage the Recalcitrant Subject

Just as the law relies on public health, public health comes to rely on law through law’s unique relation to the ultimately recalcitrant subject of discipline. The law works to engage with those subjects who are ultimately recalcitrant, those persons unable to or, who refuse to properly comport themselves as against those normative expectations of public health’s discipline. It is here, with the total and utter lack of compliance, the “sheer insubordination”^[116] of the ill-disciplined subject, that public health’s lack of power is revealed. This lack of power is a sign of public health’s inability to enforce its normalising judgements and disciplinary prescriptions for corrective actions and behaviour. Thus, criminal law is called upon to ‘deal’ with the figure of the ultimately recalcitrant subject through its enforceable edicts.

This work of criminal law occurs at the boundary of discipline’s jurisdiction. On this reading criminal law, in fact, withdraws from the sites of public health’s disciplinary operation, ceding territory to public health’s jurisdiction over much of the territory of HIV-transmission. In so doing, criminal law allows public health as a disciplinary power to maintain its claim of ‘jurisdiction’ over the supervision and correction of normality, unchallenged in its authority by criminal law. However, in the instance of a total refusal or failure of the disciplining process, to this recalcitrance on the part of the ill-disciplined subject, the disciplines can do nothing other than “identify and stigmatize abnormality but cannot enforce sanctions against it of their own scientific motion”.^[117] Criminal law here plays a vital role in providing an enforceable decision, to stem the subject’s ultimate recalcitrance of the norm. In the case of Kuoth, Lam v R, this is at no point more obvious than in relation to sentence. Where at first instance the sentence was suspended with the imposition of a community order “requiring [Kuoth] to continue treatment under the behaviour change process”,^[118] criminal law quite literally enforces the interventions and practice of public health isolation and behavioural change, substituting its own punishment for that of public health discipline, backed-up by the ever-present threat of a reversal of this substitution.

Regarding this dynamic, Daniel Reeders observes that “[i]t seems like Kuoth faced indefinite detention unless he owned up to the sexual encounter....This may be a reasonable therapeutic objective but it seriously compromised his legal right against self-incrimination.”^[119] This observation is apt, although it seems that the reverse is also true, that Lam Kuoth faced intensification of his public health detention and behavioural change processes because of his participation in criminal justice processes rather than only the other way around. In the criminal law’s substitutionary move, not only is the disciplinary intervention of public health then enforced by law, but so too is it clear that Kuoth himself is caught in a mutually re-enforcing relationship between public health on the hand, and criminal law on the other. This is clear not only in the case itself, but so too in the very structuring of public health disciplinary power more broadly. For instance, in 2002, the Australian National Council on AIDS, Hepatitis C and Related Diseases, outlined what it believed to be the appropriate response to the risk of disease transmission. It held that “punishment under public health or criminal law should be reserved for the most serious cases of culpable behaviour as a last resort”.^[120] Setting aside its distinctive reference to ‘punishment’ under public health law, this broader policy position is operationalised in the relevant national guidelines for the ‘management’ of those with HIV who place others at risk. These formal national guidelines, specifically identify the need for strategies that require “intensive, individualised case management, a variety of responses to other health and social service needs and an escalating series of behavioural management techniques including counselling, behavioural supervision, formal warnings and public health orders, including, if necessary, detention or referral to Police.”^[121] These formal guidelines specify a step-wise intensification of ‘Levels of Management’. Referral to police is the final level of ‘behavioural management’, the final step in the clincal pathway, but contemplated and present from the very beginning of engagement with a person living with HIV. In Kuoth, Lam v R, this step-wise intensification of management is clear in the pre-trial engagement between the defendant and the relevant health authorities in response to his ongoing recalcitrance to comport to the requirements of disciplinary power. This recalcitrance stipulates a response at ‘Level 5’ of the public health management pathway with a referral to police, via the Chief Health Officer of a jurisdiction “immediately”^[122] where there are “clear grounds for a charge involving intentional’ transmission or ‘after further investigation and/or intervention”^[123] or “unwillingess to alter behaviour that recklessly or negligently endangers or causes serious harm”.^[124] Whilst the guidelines specify that the application of the various levels of management are ‘not necessarily linear,’ their implementation in local protocols, such as in NSW, make it clear that the step-wise escalation through stages is contemplated. Included explicitly within the very clinical pathway in NSW, for example, is the referral into the jurisdiction of the criminal law in that linear manner:

...pre-emptive escalation to the more interventionist of these strategies will not be considered until less restrictive alternatives have been tried and have not been successful. However, there are cases where a step by step escalation through the full list of possible techniques will be considered too slow to respond to the behaviour of a particular individual.^[125]

The referral of Lam Kouth is not made clear on the public record. However, “the matter somehow came to police attention while Kuoth was undergoing isolation and counselling...[e]ither the victim complained, or it was one of the case files seized from [Department of Human Services] by police, under a search warrant obtained in the Michael Neal investigation [where Police obtained a number of case files of others living with HIV maintained by the Department of Human Services]”.^[126] Regardless of the exact chronology, it was his resistance to the formal processes of public health discipline which led him to the criminal law.

Kuoth is an ultimately recalcitrant subject of discipline who resists the persuasive claims of public health practice. It is this resistance to the disciplining effects of public health which a Foucauldian view assists us most to grapple with. His position in the field of HIV transmission governance demonstrates the use and/or acceptance of criminal law as a “mop-up” ^[127] strategy applicable to those who remain non-compliant with public health's interventions. This is key to understanding how public health is constituently dependent upon criminal law. The public health authorities can merely “identify and stigmatize abnormality but cannot enforce sanctions against it of their own scientific motion”.^[128] Law plays a vital role in providing an enforceable decision, where the ultimately recalcitrant subject’s transgression of the norm comes up against the law. This role played by criminal law, undermines the claims made in the anti-criminalisation literature that law has been expelled or instrumentally subordinated or that it is incompatible with public health procedures and practice. Rather, criminal law plays a productive role for public health in its engagement with HIV transmission.

The mechanism by which criminal law enacts this enforceable decision – in a manner which bolsters the authority of public health – is through its policing of the contested boundary of public health’s authority. Where ultimate recalcitrance challenges that authority, criminal law “goes to constitute disciplinary power...by purporting to exercise its supervisory jurisdiction only over the more egregious aberrations, abuses and excesses of disciplinary power”;^[129] criminal law is called upon only to rule in relation to a certain class of subjects, those exhibiting “sheer insubordination”^[130] to the disciplinary or bio-political moulding of their subjectivity. Here, subjects who continue to transmit HIV – despite the best efforts of the public health apparatus – are examples of a failure of that system’s ability to deal with ultimate recalcitrance. It is criminal law’s policing of discipline itself, of its overreaching and its excesses, which works to buttress discipline’s authority. This is clear in relation to the direct integration of criminal law into the public health clinical pathway. So too is this clear in the place of criminal law to provide oversight and review of those instances where public health attempts to enforce its sanctions through the legal system, namely administrative appeals of administrative public health orders. Criminal law is restrained from engaging in adjudication of the merits of these significant administrative orders unless called upon to do so. This “self-limiting legality”^[131] leaves the public health apparatus to engage with and manage episodes of transmission as it sees fit. Its jurisdiction left unchallenged by public health’s control of the field is legitimated, in this case, by criminal law’s absence. In choosing not to rule, criminal law buttresses public health’s hold on HIV. It works to re-assure its identity as the ‘correct’ method of dealing with the issues of HIV transmission. Thus, by “confining criminal law to the contested periphery, in the form of legal supervision of it, the instability at the very core of disciplinary power (the lack of epistemological certitude and authority for its normalising project) is left unquestioned and hence reinforced.”^[132] It is here with figures like Kuoth where public health’s “suasive claims” ^[133] yield to the “enforceable determination of the law” ^[134].

Conclusion

This article has explored the relationship between public health practice and criminal law in the framing of responsibility for particular events surrounding HIV. The finding in Kuoth, Lam v R is a demonstration of the particular relationship between these twin powers of modernity, deepening the sense in which they are mutually implicated in a co-constitution both of the HIV positive person, of the framing of responsibility and also, perhaps most striking, of one another.

Currently, over one thousand people become HIV-positive in Australia each year.^[135] What is clear from above is that the ultimate recalcitrance of certain subjects (i.e. the failure of public health’s disciplinary intervention) is in fact the foundation for public health’s ongoing jurisdiction over the field. Such failure is the spur to further work. When seen through the thought of Foucault, however, such failure always has such effects. In another context, he says of prisons that:

For a century and half the prison had always been offered as its own remedy: the reactivation of the penitentiary techniques as the only means of overcoming their perpetual failure; the realisation of the corrective project as the only method of overcoming the impossibility of implementing it.^[136]

In the same way, the presence of and response to the ultimately recalcitrant subject is the “motivation for the development of every new network of power”.^[137] As Golder and Fitzpatrick put it, “recalcitrant provocation constitutes more than a simple ‘correction’ to disciplinary power...[it] is in fact formative of its very being, of the borders of the disciplinary norm itself” ^[138].

There are three key implications which flow from the arguments presented above about criminal law, public health, HIV transmission and Foucault. The first is simply that public health practices and criminal law are each implicated in the construction of the HIV positive person, of onward disease transmission and, finally, of framing responsibility in all of those attendant contexts. This sharpening of the usual picture of public health and criminal law’s relationship should make us attentive to all manner of relationships which are established, sustained and reshaped through the mutual interplay of these twin forms of rule. The second implication of the argument presented above is that to think or write about public health practices and HIV transmission is to require now a view of the mutual implication of public health and criminal law broadly understood. Situated at its contested boundary, criminal law is productive for public health. This particular positioning of criminal law, at a distance, is productive for public health. Criminal law is then able to assist in upholding public health’s very identity, to buttresses its epistemic and jurisdictional claims and thus reinforces and at times enforces the effectiveness of its disciplinary techniques and bio-political ends. So too is this relationship productive for criminal law. Criminal law borrows and then applies language, knowledge and schemas previously unavailable to it from public health practice to achieve its own processes of responsibility attribution. This is what constitutes the third, and final, implication. This is in invitation to ensure engagement with criminal law – and perhaps law in general – remains attendant to law’s own openness to its outside, its dynamic of relation to those powers outside of it which it forever takes into itself.

Criminal law and public health practice rely on one another in a variety of surprising ways that are largely unacknowledged in the literature and denied by the dominant interpretation. The two powers are mutually reliant upon one another to buttress each other’s identity: they work to mutually co-constitute one another in an interplay which relies upon highlighting difference through law’s strategic withdrawal from certain cases of HIV transmission whilst conflicting with public health in relation to those deemed completely recalcitrant. The outcome for criminal law is that it is not rendered the solid, coherent or separate entity that the literature conceptualises it to be. So too, the relationship between criminal law and public health practice, is imagined as one more tight-knit, co-determined and inseparable than is described in the literature. As Peter Rush puts the matter:

No single practice or discourse – whether it is the plural traditions of the law of crime, or the no doubt plural traditions of medicine and social policy – has the final say. Although some of them seem to want to have the final say, the criminalisation of HIV transmission indicates that they are essentially contestable in a culture of argument. And this may be a good thing.^[139]

The case of Lam Kuoth stands as a prompt to this theoretical work, a reminder of the human and lived dimension of the tension amongst criminal law, public health and other powers that work to constitute HIV today. That lived reality of HIV, which interfaces with law of any and all varieties, renders critique and the working through of law’s relationship to public health all the more essential and urgent. For Kuoth and others who face public health and criminal legal technologies of coercion, compulsion or detention, this inherently unstable law, constantly being displaced and made new again through the adoption of elements drawn from outside itself, speaks to possibilities for different futures of responsibility.

References

Primary Legal Sources

Crimes Act 1900 (NSW)

Crimes Act 1958 (Vic)
Crimes (High Risk Offenders) Act 2006 (NSW)

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Kanengele-Yondjo v R [2006] NSWCCA 354 (16 November 2006)

Kuoth, Lam v R [2010] VSCA 103 (21 April 2010)

Notifiable Diseases Act (NT)

Public Health Act 1997 (ACT)

Public Health Act 2005 (QLD)

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R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008)

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^* Lecturer in Law, Quentin Bryce Scholar, UTS Faculty of Law. This research was undertaken as part of an LLM (Research) at the University of New South Wales. The author would like to particularly thank Dr Ben Golder and Dr Tyrone Kirchengast for their supervision of that research. Thanks are due also to Dr Anthea Vogl, Dr Mark DeVitis as well as the anonymous reviewers of this article for their generous feedback.
¹ Crimes Act 1958 (Vic) s 122.
^[2] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008).
^[3] Kuoth, Lam v R [2010] VSCA 103 (21 April 2010) (‘Kuoth’) per Maxwell P at [2]-[3].
^[4] There was criticism of the sentence by some, with Lacava J reported to have similarly believed initially that the sentence was “too lenient but after reading [Department of Human Services] reports, he agreed continued treatment was the best option for Kuoth” Medew (2007).
^[5] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) per Maxwell P (with whom Buchanan JA agreed) at [18].
^[6] Kuoth [2010] VSCA 103 (21 April 2010) per Maxwell P at [18] with whom Buchanan JA agreed. Note how the Court here considers the essence of imprisonment as the ‘deprivation of liberty’. Imprisonment, as Foucault points out, has never been restricted to simply the deprivation of liberty, but instead always functions with additional elements which extend beyond deprivation of bodily liberty alone. See also Dilts (2014), p, 42-43 on disenfranchisement and its similar logic to deprivation of liberty.
^[7] Kuoth [2010] VSCA 103 (21 April 2010) at [18].
^[8] Chong, Fellows and Richards (2013), p 379.
^[9] Reeders (2008), p 8.
^[10] Race (2012), p 327.
^[11] See specifically Golder and Fitzpatrick (2009)
^[12] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008).
^[13] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [6]-[8].
^[14] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [6]-[8].
^[15]At the time of the Kuoth trial, the relevant State Government body, the Victorian Department of Health and Human Services—and the Chief Health Officer of Victoria—had been reviewing its ‘management’ of those living with HIV. This was initiated after the former Chief Health Officer, Dr Robert Hall, had been publically criticised for his handling of the case of Robert Neal, a man living with HIV who had been found guilty of twenty-six counts of various offences, including that of causing another to be infected with HIV and over a dozen counts of attempt to cause another to be infected with HIV. Dr Hall had decided not to act on advice to issue a public health order to isolate or quarantine Neal. Infamously, after a refusal to hand over Neal’s medical record to police, a warrant was issued for a raid of the Department, at which Neal’s records were seized, together with the records of another seventeen of the thirty to forty who were being managed by the department. This controversy over the state’s role in policing the sexual behaviour of persons with HIV was the context in which Kuoth’s case came before the County Court of Victoria.
^[16] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [10]-[15].
^[17] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [10]-[15].
^[18] R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [10]-[15].
^[19] Crimes Act 1958 (Vic) s 23.
^[20] Crimes Act 1958 (Vic) s 15, serious injury means: (a) an injury (including the cumulative effect of more than one injury) that: (i) endangers life; or (ii) is substantial and protracted. This has been adopted to include HIV in Victoria Neal v R [2011] VSCA 172; (2011) 32 VR 454; see also in the UK R v Dica [2004] EWCA Crim 1103; [2004] QB 1257.
^[21] Medew (2007).
^[22] Chong, Fellows and Richards (2013), p 379.
^[23] [2004] HCA 37; See McSherry (2005), p 94; Keyzer and Mcsherry (2015).
^[24] [2004] HCA 46; (2004) 78 ALJR 1519; 210 ALR 50.
^[25] Richards, in Mathews and Bross (eds) (2015), pp 105, 110; Porter (1994).
^[26] Hamilton (1978), p 14; Maglen (2006), p 317; Brown (2009), p. 1.
^[27] Reeders (2008), p 8.
^[28] (1815), 4 M & S 72, 105 ER 76 (KB), see Reynolds (2011), p 283.
^[29] Bibbings and Nicolson (2013), p 208.
^[30] Crimes Amendment (Repeal of Section 19A) 2015 (Vic).
^[31] Crimes Act 1958 (Vic) s 19(a)(2).
^[32] Crimes Act 1900 (NSW) s 4.
^[33] Cameron, Burris and Clayton (2008), p 7; Lehman et al (2014), p 997; United States Department of Justice, Civil Rights Division, ‘Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors’ <https://www.aids.gov/federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf>.
^[34] Gostin (2008).
^[35] Gostin (2000), p 2837.
^[36] Brown and Duncan (2002), p 365.
^[37] For an overview of various powers and sources of law see Cameron, ‘HIV, Crime and the Law in Australia: Options for Policy Reform – a Law Reform Advocacy Kit.’ <https://www.afao.org.au/__data/assets/pdf_file/0018/4536/DP0211_HIV_Crime_and_the_Law.pdf>; and see generally Reynolds (2011), p 283.
^[38] Reynolds (2011), p 192.
^[39] Reynolds (2011), p 308.
^[40] Public Health Act 2010 (NSW) s11.
^[41] Public Health Act 2010 (NSW) s97.
^[42] Public Health Act 2010 (NSW) s54-55.
^[43] See for example Public Health Act 1997 (ACT) s102(A)(2), 2010 (NSW) s54-55; Notifiable Diseases Act (NT) s16; Public Health Act 2005 (QLD) s72-73.
^[44] Outside Western Australia, the Northern Territory and Victoria, Cameron (date unknown).
^[45] Cameron (2009); Reynolds (2011), p 292.
^[46] The use and form of such orders across Australian jurisdictions is the subject of a separate research project being undertaken by the author.
^[47] Cliff and Smallman-Raynor (2013), p 65.
^[48] Golder and Fitzpatrick (2009), p 61.
^[49] See for example Rush, Tomsen and Klein discussed below.
^[50] Reynolds (2011), p 306.
^[51] Reynolds (2011), p 306.
^[52] Reynolds (2011), p 306.
^[53] Weait (2007), pp 233.
^[54] Weait (2007), pp 233.
^[55] Burris et al (2007), pp 467, 467.
^[56] Weait (2007), p 12.
^[57] Weait (2007), p 12.
^[58] Weait (2007), p 12.
^[59] Weait (2007), p 200.
^[60] Weait (2007), p 200.
^[61] Cameron and Rule (eds) (2009).
^[62] Cameron and Rule (2009), pp 18, 20.
^[63] Cameron and Rule (2009), p 20.
^[64] Cameron and Rule (2009), p 20.
^[65] Das too notes how epidemic control strategies employ “...an equivocal logic...[where] personhood [is] constituted in the borderline between...two distinct and contrary rationalities...” where in that analysis a person living with HIV is invested as a subject of the state even as the state denies them full subjecthood, see Das (2013), p 24.
^[66] Weait (2007), p 110.
^[67] Cameron and Rule (2009), p 20.
^[68] Cameron and Rule (2009), p 20.
^[69] Cameron and Rule (2009), p 18 emphasis my own.
^[70] Weait (2007), p 21.
^[71] Weait (2007), p 200.
^[72] See especially Hunt and Wickham (1994).
^[73] Golder and Fitzpatrick (2009), p 13.
^[74] Golder and Fitzpatrick (2009), p 13.
^[75] Golder and Fitzpatrick (2009), p 16–17.
^[76] Golder and Fitzpatrick (2009), p 13.
^[77] Foucault (2012), p 89.
^[78] Foucault (2003), p 38.
^[79] Foucault (2003) p 38.
^[80] Golder and Fitzpatrick (2009), p 22.
^[81] Golder and Fitzpatrick (2009), p 22.
^[82] Golder and Fitzpatrick (2009), p 22.
^[83] Golder and Fitzpatrick (2009), p 23.
^[84] Golder and Fitzpatrick (2009), p 22.
^[85] Golder and Fitzpatrick (2009), p 13.
^[86] Golder and Fitzpatrick (2009), p 72.
^[87] Golder and Fitzpatrick (2009), p 15.
^[88] Weait (2000), p 200.
^[89] Golder and Fitzpatrick (2009), p 53.
^[90] Golder (2013), p 40.
^[91] Golder (2012), p 91.
^[92] Golder (2012), p 102
^[93] Weait (2007), p 18.
^[94] Golder and Fitzpatrick (2009), p 13.
^[95] Golder and Fitzpatrick (2009), p 79.
^[96] Foucault (2003), p 25.
^[97] Golder and Fitzpatrick (2009), p 63.
^[98] Golder and Fitzpatrick (2009), p 13.
^[99] Golder and Fitzpatrick exegete another instance of this process in the case of R v Board of Visitors of HM Prison, the Maze ex parte Hone [1987] UKHL 9; [1988] 1 AC 379, where the law is used to supervise disciplinary proceedings in UK gaols , see Golder and Fitzpatrick (2009), p 63.
^[100] Crimes (High Risk Offenders) Act 2006 (NSW), s 17(4)(d). See McSherry (2014), p, 782.
^[101] Golder and Fitzpatrick (2009), p 64.
^[102] [2006] NSWCCA 354 (16 November 2006).
^[103] Golder and Fitzpatrick, (2009), p 64.
^[104] Kanengele-Yondjo v R [2006] NSWCCA 354 (16 November 2006) at [16], emphasis added.
^[105] Klein (2009), pp 251, 266.
^[106] Tomsen (2009), pp 92, 97.
^[107] Tomsen (2009), pp 92, 97.
^[108] Tomsen (2009), pp 92, 97.
^[109] Klein (2009). p 269.
^[110] Klein, (2009), p 269.
^[111] Weait (2007), pp 87–105.
^[112] For example, public health physicians testified at the trial of Kanengele-Yondjo, Kanengele-Yondjo v R [2006] NSWCCA 354 (16 November 2006).
^[113] Rush (2009), pp 74, 81.
^[114] Rush (2009), p 75.
^[115] Golder and Fitzpatrick (2009), p 62.
^[116] Golder and Fitzpatrick (2009), p 67.
^[117] Golder and Fitzpatrick (2009), p 70.
^[118] Reeders (2008), p 8.
^[119] Reeders (2008), p 8.
^[120] Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (date unknown).
^[121] Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (date unknown), p 4.
^[122] Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (date unknown), p 6, emphasis in original.
^[123] Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (date unknown), p 6.
^[124] Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (date unknown), p 7.
^[125] NSW Ministry of Health, NSW Government (date unknown).
^[126] Reeders (2008), p 8.
^[127] Rush (2009), pp 75.
^[128] Golder and Fitzpatrick (2009), p 70.
^[129] Golder and Fitzpatrick (2009), p 64.
^[130] Golder and Fitzpatrick (2009), p 67.
^[131] Golder and Fitzpatrick (2009), p 68.
^[132] Golder and Fitzpatrick (2009), p 64.
^[133] Golder and Fitzpatrick (2009), p 67.
^[134] Golder and Fitzpatrick (2009), p 67.
^[135] The Kirby Institute (2015), p 11.
^[136] Foucault (1980), p 138; See also Golder and Fitzpatrick (2009), p 69.
^[137] Golder and Fitzpatrick (2009), p 69.
^[138] Golder and Fitzpatrick (2009), p 68.
^[139] Race, above n 10.