De-moralizing harm: the potential of actor network theory (ANT) in critiquing criminalization

The criminalization of HIV has provided extensive opportunity for doctrinal and socio-legal analysis of core criminal law concepts. Although there exist differences of opinion as to the legitimacy of criminalization, these tend to focus on the degree of fault that should be proved in order to justify liability, and whether mere exposure (without transmission) is sufficiently serious to warrant a penal response. There has, however, been practically no thought given to the question of whether HIV (an environmental phenomenon, and now a treatable, if serious and chronic, condition) should necessarily be thought of as a harm for the purposes of the criminal law, and whether standard approaches to causation - and hence accountability and responsibility for actual or potential infections - are fit for purpose.  In this paper, drawing on aspects of work by Bruno Latour and Jane Bennett, and my experience in HIV policy and activism over the past twenty-five years or so, I aim to provoke debate about this question - a question not only important to the millions of people living with HIV (and who, in many jurisdictions are all potential criminals merely by virtue of their HIV positive status), but to the way we think about thinking about criminalization and the criminal law.

Matthew Weait is the Dean of the Faculty of Humanities and Social Sciences, University of Portsmouth.