Individual Rights and the Negotiation of Governmental Power
Published date | 01 March 2015 |
Date | 01 March 2015 |
DOI | 10.1177/0964663914544900 |
Author | Diana Young |
Subject Matter | Articles |
Article
Individual Rights and the
Negotiation of
Governmental Power:
The Risk of HIV
Transmission and
Canadian Criminal Law
Diana Young
Carleton University, Canada
Abstract
In the past 20 years, Canada has seen an increasing tendency to use the criminal law
as a means of enforcing norms of safe sex and disclosure among the HIV-positive
population – particularly the law of sexual assault. Although the structure of individ-
ual rights that underlies the law of sexual assault is conceptually distinct from norms
produced through governmental power, this article shows that it is often difficult to
draw clear distinctions between the two. An analysis that focuses strictly on individ-
ual rights is unsatisfactory because it fails to account for the social nature of our
expectations of responsibility and trust. At the same time, when the individual right
derives its content by absorbing a norm produced through governmental power, it
fails to provide a principled discourse for future decision – making.
Keywords
Canada, criminal law, governmentality, HIV and AIDS, rights, sexual assault
Corresponding author:
Diana Young, Department of Law and Legal Studies, Carleton University, 1125 Colonel By Drive, Ottawa,
Ontario K1S 5B6, Canada.
Email: diana_young@carleton.ca
Social & Legal Studies
2015, Vol. 24(1) 113–134
ªThe Author(s) 2014
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DOI: 10.1177/0964663914544900
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Introduction
In this article, I will consider how legal discourses employed by judges in criminal cases
absorb and reorganize governmental power. I use as an example the Canadian law of sex-
ual assault and the criminalization of HIV-positive individuals who are thought to pose
an unacceptable risk of transmitting the virus.
Governmental power has produced norms of sexual ethics geared toward reducing the
risk of HIV transmission across the population. These norms are given effect through the
freedom of individuals who assert their status as responsible subjects by adopting
rational risk management practices with respect to HIV exposure. On the other hand, the
legal discourses underlying the law of sexual assault are predicated on a concept of indi-
vidual rights – specifically the individual’s abstract right to choose whether or not to
have sexual contact. The rationale of the modern law of sexual assault is that individual
freedom is asserted because this choice need not conform to social norms. While govern-
mental and legal power may in some ways seem irreconcilable, an examination of the
cases in this area of law shows that it is often difficult to entirely separate them.
In this article, I will use the example of the law of sexual assault in the HIV cases to
demonstrate two possible dynamics emerging from the law’s encounter with governmen-
tal power. First, the contemporary law of sexual assault is structured on an individual
right to be free from unwanted sexual contact from other individuals – a right that is con-
ceptually independent of norms produced by governmental power. Despite this concep-
tual independence, we see that in the Canadian courts’ analysis of the HIV cases, this
right derives its content by absorbing a dominant norm of safer sex practices. The effect
of this is not simply to reproduce the norm and legitimize its enforcement through the
coercive power of the criminal justice system. The structure of individual rights also
unevenly distributes responsibility for compliance with norms of safer sex practices.
On the other hand, there are doctrinal approaches to the law of sexual assault which gives
content to the individual right by providing a site for contestation by subordinate norms –
in these cases, the use of the concept of ‘reasonableness’ – which help to reconcile gov-
ernmental and legal power by understanding the individual right as an essentially social
construct.
The first part of this article discusses governmental power as a mechanism of risk
management and considers perspectives on the impact it has had on the control of HIV
and AIDS. The second part examines two cases of the Supreme Court of Canada, R. v.
Cuerrier (1998) and R. v. Mabior (2012), that have dealt with individuals facing criminal
prosecution for failing to disclose their HIV-positive status to sexual partners. These
cases illustrate that a classically liberal invocation of the individual rights model fails
to take account of the essentially social nature of expectations of trust. However, when
an individual right is constructed by absorbing a social norm, it fails to provide a stable
principle for future decision-making. In the third part of the article, I show how the crim-
inal law’s construct of fraud and reasonableness has the potential to reconcile legal dis-
course and governmental power. It does so not by constructing an abstract right through
the passive absorption of dominant social norms but by providing a mechanism of nego-
tiating governmental power, offering a site for contestation by norms that emerge from
different ‘natural domains’ (Rose and Valverde, 1998: 545), and constructing a right by
114 Social & Legal Studies 24(1)
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