Silence that matters: HIV Nondisclosure and the limits of Consent

This dissertation explores the legal and sociocultural linguistic implications of the Supreme Court of Canada’s decision in R. v. Cuerrier (1998) where it was ruled that the nondisclosure of HIV-positive status could vitiate otherwise freely given consent, resulting in the sexual act being deemed aggravated assault or aggravated sexual assault. Specifically, I am interested in how the logic of HIV nondisclosure law is deeply interwoven with heteronormative assumptions about sexuality and how consent is negotiated in practice. To interrogate the often-unstated assumptions underlying the Court’s decision, I examine how the legal imperative to speak about one’s HIV status is resolved within gay sexual spaces (where consent is customarily negotiated wordlessly). My goal, in doing this, is to identify how these competing imperatives (i.e., the legal obligation to speak and a custom of staying silent) are resolved within cultural and linguistic practice.

In this study, I use autoethnography, semi-structured interviews, and legal analysis to examine the legal and political implications of the criminalization of HIV nondisclosure. My findings suggest that existing approaches to HIV nondisclosure in criminal law are insufficiently attentive to how regulatory apparatuses, including social norms, shape the interpretation of sexual practices. This often results in courts confounding sexual diversity with sexual violence, which continues a long-held tradition of criminalizing sexual minorities. Guided by these insights, my legal analysis challenges the logic of HIV nondisclosure law more directly. Specifically, I argue that privileging putatively “rational” faculties, like autonomy, in the regulation of sexualities fails to adequately capture the complexities embodied in sex and negotiations of sexual consent. As an alternative, I offer a new model—what I call bodily subjectivity—to more fully capture the visceral harm enacted by acts of sexual assault.