Counteracting shame,recognizing desire: Managing the emotional reverberations of criminalizing HIV nondisclosure in Canada

Introduction

Emotions like fear, anger and disgust drive the arrest and prosecution of criminal offenders (Abrams, 2015; Johnson, 2009; Sarat, 1997) and are linked to moralizing discourses about gender, sexuality and HIV/AIDS (Adam, 2006; Kilty & Bogosavljevic, 2018; Shevory, 2004). Relatedly, stigma and ostracism have loomed large in the public imagination since the arrival of HIV (Duffy, 2005; Parker & Aggleton, 2003) and continue to play a role in the desire to criminalize people living with HIV/AIDS (PLWHA) for failing to disclose their HIV status to a sexual partner and individual decisions about whether and to whom to disclose.

Drawing on Hochschild’s (1979, 1983/2003) research on framing and feeling rules, this article studies how emotions are managed by those who work in Canadian AIDS Service Organizations (ASOs) as they grapple with the issues unleashed by the criminalization of HIV nondisclosure. Our empirical focus is on the individuals who work in this sector. To be clear, we do not suggest that ASOs ‘stand in’ for the perspectives of PLWHA. The experience of living with HIV is neither uniform nor predictable; it is structured by interlocking systems of power that privilege particular bodies and disadvantage others. ASO staff are key interlocutors who perform emotion work in their interactions with clients (Kilty & Orsini, 2017).

The spectre of criminalization shifts the emotional landscape of HIV support work. While there is a strong tradition of analysing the interplay between law and emotions, examining how personal and cultural emotions shape interpretations of criminal threat and responses to those threats remains underexplored. While scholars have studied HIV related shame and stigma (Duffy, 2005; Parker & Aggleton, 2003), the dominant histories of AIDS have centred on pivotal (often gay male) activist voices (Gould, 2009). Activists and social movement actors are key players, but they are not accountable to all client groups in the way that ASOs are (Adam et al., 2015; Kinsman, 1996; O’Byrne, 2012).

We also draw on critiques of ‘carceral feminism’ to suggest that punitive approaches to nondisclosure must be examined even when they emanate from purportedly progressive arenas. This is relevant since an overwhelming majority of cases related to HIV nondisclosure involve heterosexual partners, where the (often racialized) male is accused of not disclosing his status to his female partner (Hastings, Kazatchkine, & Mykhalovskiy, 2017). Carceral feminism is a dominant and largely white feminist approach that supports increased criminal justice system involvement as the solution to violence against women (Bernstein, 2012; Heiner & Tyson, 2017; Whalley & Hackett, 2017). We suggest that a carceral feminist logic has begun to insinuate itself in debates about HIV criminalization, especially in cases of heterosexual transmission. An approach that purports to protect women from sexual assault and to ensure that perpetrators are appropriately punished can neglect how protecting women from sexual assault is deeply heteronormative and overlooks intersections of race and sexuality (Patton & Snyder-Yuly, 2007; Whalley & Hackett, 2017). Moreover, a carceral logic to sexual assault should be distinguished from its application to settings in which no assault has taken place, which in this case requires reframing the withholding of one’s HIV status as a potential form of emotional, but not criminal, harm (Weait, 2016). As Heiner and Tyson (2017, p. 2) articulate, just as we have witnessed the ‘epistemic occupation of feminist antiviolence work by this carceral logic’, punitive approaches to HIV nondisclosure fail to recognize the inherent uncertainty and complexity of sexual decision-making (Adam, 2006; Adam, Elliott, Husbands, Murray, & Maxwell, 2008; Adam et al., 2015) and the challenges ASO workers face in communicating legal information.

PLWHA are not ruthlessly intent on transmitting HIV to unsuspecting partners, nor are all ‘victims’ passive or without agency. As Heiner and Tyson (2017) remark,

… dominant neoliberal logic delineates only one intelligible schema of accountability for violence – that of an individual (non-state) agent – and only one general form of legitimate response: state-centric punishment (whether confinement, execution, or other form of physical, civil, or social death). Alternative forms of community accountability and redress that break from state-centric carceral systems appear baffling, irresponsible, even monstrous. (p. 3)

It is not surprising that emotions are managed in professional workplace settings since the personal and professional spheres are rarely discrete, and workers are thinking, feeling actors. Hochschild’s (1979) interactive perspective allows us to explore emotions as deeply felt social and material experiences and how we are influenced by cultural cues and norms pertaining to the appropriate expression of feelings yet are also ‘capable of assessing when a feeling is “inappropriate”, and of trying to manage feeling’ (p. 557), something Cvetkovich (2012) discusses with respect to the public feeling of depression.

We examined the professional setting of ASOs, which are not-for-profit organizations that provide education related to HIV/AIDS and other sexually transmitted infections and prevention and health promotion efforts, including anonymous testing, counselling, service referral and treatment monitoring. These settings require that employees provide support to PLWHA and respond to their experiences of shame, discrimination, violence, rejection and fear of criminalization. Many professionals in the medical and ASO sectors denounce criminalization as a failed public health approach that does not prevent HIV transmission (Barré-Sinoussi et al., 2018; Canadian Association of Nurses in AIDS Care [CANAC], 2013; Canadian Coalition to Reform HIV Criminalization [CCRHC], 2017; Levine, 2012; Loutfy et al., 2014; UNAIDS, 2013). ¹ Building on work that documents the consequences of criminalization on public health policy and practice (Adam et al., 2008, 2015; Hoppe, 2018; Levine, 2012; UNAIDS, 2013; Weait, 2007, 2016) and the problems associated with legal interpretations of ‘significant risk’ (Mykhalovskiy, 2011), our participants spoke of struggles to perform the ‘on-the-job task of creating and sustaining appropriate meanings’ (Hochschild, 1979, p. 570) of what it means to live with HIV in the shadow of criminalization. Like Hochschild’s (1983/2003) flight attendants, frontline ASO work offers low financial reward and little authority but requires a great deal of emotional labour. Following Hochschild’s (1979) suggestion that as a result of ‘being less rewarded for their work than their superiors, [they] are more likely to feel detached from, and be perceptive about, the rules governing deep acting’, we examine how frontline ASO workers perceive the feeling and framing rules emanating from the criminalization of HIV nondisclosure (p. 570). Unlike Hochschild’s flight attendants, however, our participants expressed continuity between their personal and professional views about HIV nondisclosure and criminalization. This stability reflects the fact that some ASO workers are HIV positive ² or became involved in this work because of their personal connection to or passion for it, rather than for the financial reward.

Hochschild (1979) defines feeling rules as ‘delineat[ing] a zone within which one has permission to be free of worry, guilt, or shame with regard to the situated feeling. Such zoning ordinances describe a metaphoric floor and ceiling, there being room for motion and play between the two’ (pp. 565–566). If they are ‘precursors to action’, feeling rules can be understood as structuring decision-making with respect to HIV (non)disclosure. It therefore follows that if the two parties involved in a sexual encounter hold different expectations by way of different ideological framings of HIV (non)disclosure, they might also experience different feelings about the value and importance of disclosure. Understanding framing rules as a meaning-making force enables us to consider how feeling rules might vary between people or groups. This means that HIV disclosure is measured against what each individual already believes they are ‘reasonably owed’ in an intimate experience; ‘against this background measure, some gestures will seem more than ample, others less’ (Hochschild, 1979, p. 568).

For many PLWHA, their advocates and allies (including ASO staff), and medical professionals, condom use or maintaining an undetectable viral load demonstrates an ethic of care (Kilty & Orsini, 2017) that should forego the need to disclose (Adam, 2006; Adam et al., 2008; CCRHC, 2017; Galletly, Glasman, Pinkerton, & DiFranceisco, 2012; Galletly & Pinkerton, 2006; Hoppe, 2018; Levine, 2012; Mykhalovskiy, 2011; UNAIDS, 2013; Weait, 2007, 2016). The Supreme Court of Canada, however, argued that only when paired do they alleviate the legal requirement to disclose one’s HIV status. ³ If the frame of criminalization organizes feeling rules that create an ‘understanding of patterned entitlement’ (Hochschild, 1979, p. 568) to be disclosed to, independently, the worth of these two gestures is likely to be judged as insufficient as a medium of exchange in a sexual encounter. Notably, the antiretroviral treatment that makes those who are undetectable untransmissible, and the recent prosecutorial directives issued by the Canadian government and some provincial jurisdictions have contributed to a recent decline in prosecutions, which indicates that case law may be catching up with science.

We identify three ways in which emotions structure this field: (1) through a paternalistic concern for women’s safety, which reflects a carceral feminist agenda; (2) via the emotions that structure HIV disclosure decision-making; and (3) through the emotional labour of counselling disclosure practices. We mobilize insights from the literature on law and the sociology of emotions and on carceral feminism to understand how criminalization evokes a range of emotions, from feelings of anger to retribution and shame.

Method

Given our focus on the emotional underpinnings of criminalization and the emotional labour performed by ASO workers, we conducted interviews to collect rich descriptive data from a large and geographically dispersed sample. We received approval from the University of Ottawa’s Research Ethics Board in January 2014. To recruit participants, we began by contacting the Executive Directors of ASOs in the major cities in each of Canada’s 10 provinces – all of whom responded positively and agreed to forward an information sheet to their staff members, who emailed the researchers directly to indicate their interest in participating. We also asked participants to identify local community health centres that engage in HIV intervention work as additional recruitment sites. We had positive responses from all of the organizations we contacted (N = 37) and conducted 62 in-person, semi-structured interviews (26 men, 36 women).

Interviews occurred in two phases (January–April 2014 and August–November 2015), including seven in the province of Quebec, four of which were conducted in French. Interviews lasted between 30 and 90 minutes and most were done on-site, allowing us to observe the various ASO environments, engage with staff members and collect printed materials. Most participants were frontline workers who support, educate and advocate for people living with or at risk of acquiring HIV/AIDS (40). Participants also included the Executive Directors (16), most of whom conducted frontline work earlier in their careers, social workers (2), nurses (2) and doctors (2). Participants were asked to assess: their level of knowledge about the law pertaining to HIV nondisclosure and how they came to be informed thereof; the kinds of questions service users ask about criminalization; the types of resources they have at their disposal; their personal feelings about criminalization and their emotional responses to service users’ accounts of disclosing/not disclosing; and how criminalization affects their daily work.

Interviews were digitally recorded and transcribed verbatim to facilitate coding and analysis. We coded the transcripts using critical discourse analysis to systematically relate specific structures of text or talk to broader social and political structures, institutional systems and contexts (Fairclough, 1995; van Dijk, 1993), which enabled us to distinguish how ASO staff members create, manage and reproduce emotional discourses about HIV, risk, responsibility and nondisclosure. First, the authors read and discussed the transcripts to better understand the data. Second, they generated codes (independently, then together) to describe the participants’ statements. Using an Excel file allowed us to track saturation of the codes across the participants; codes were listed on the horizontal axis and participants on the vertical axis. Third, we combined the codes to identify the main discursive findings that are discussed in this article: (a) the emotional underpinnings of the carceral feminist agenda as it pertains to the criminalization of HIV nondisclosure; (b) the emotional labour of disclosure as it is understood by participants; and (c) the type of emotion work ASO staff perform in the context of criminalization. Fourth, to verify that the codes were appropriately aggregated we reviewed the transcripts a second time to ensure that the codes and findings accurately reflected participants’ responses. We found no differences in the findings by the age, gender or position held by the respondents. Credibility was also achieved by discussing the initial findings from the first phase of interviews with participants in the second phase (Lincoln & Guba, 1985). Fifth, we established the nature and scope of each discourse and documented their relationship to one another. This involved selecting quotes that reflected each point made in relation to the themes that emerged.

Law, emotions and the carceral feminism of criminalizing HIV nondisclosure

Although rates of HIV infection remain higher amongst gay men and men who have sex with men (Hastings et al., 2017; Hoppe, 2018), the majority of reported HIV nondisclosure cases (100% of female defendants and 68% of male defendants) involve heterosexual sex (Hastings et al., 2017; Mykhalovskiy, Hastings, Sanders, Hayman, & Bisaillon, 2016). The overrepresentation of heterosexual cases raises an important question. Are same-sex partners less likely to report nondisclosure to the police? If so, this might be due to the internalization of the longstanding public health message that individuals are responsible for their own sexual health and should approach each sexual encounter as a potential site of infection (Adam, 2006; Adam et al., 2008).

I’m not sure if this is just an anomaly to gay and MSM that after so many years of having HIV in our lives that we come at it from a very different lens than heterosexual society may … I have a sense that the gay community is less likely to pursue criminalization charges for nondisclosure because we have a knowledge and understanding that we perhaps should know better based on being the population we are and the impact it’s had on our lives. There’s this sense of ‘I’ve lived in this community; I’ve lived with HIV in my world long enough; I should know enough to ask enough people their HIV status; I should know enough to use a condom; I made a choice, so therefore, I will own that.’ (male, 53)

This perspective can be analysed using Hochschild’s (1979, 1983/2003) point that feeling rules reflect patterns of social membership. As different social groups seek to legitimize their framing and feeling rules, we must recall that the laws governing emotion operate within an ‘arena of political struggle’ (Hochschild, 1979, p. 568) where ‘the multiplicity of cultural patterns that exist … may well be inconsistent with each other, and will also be differentially utilised by the various social groups whose “property” they are’ (Tudor, 2003, p. 252). Given the dominant heteronormative paradigm that structures how we interpret sexuality, the overrepresentation of heterosexual nondisclosure cases illustrates how Canada’s aggressive approach to prosecution may be driven by a carceral feminist agenda that is entrenched in cultural attitudes about the need to protect women’s, especially white women’s, virtue (Patton & Snyder-Yuly, 2007; Whalley & Hackett, 2017).

Reflecting Barbalet’s (2002) position that ‘perceptions of things change, through emotional consciousness, and things are valued differently’ (p. 142), as the rates of HIV increased amongst heterosexual people, the cultural framing of HIV as a gay disease and the feeling rules associated with that framing, started to shift. Instead of feeling socially distant from and indignant toward the sexual practices of gay men, heteronormative anxieties surfaced about the increasing proximity of HIV that were accompanied by anger toward those who fail to disclose. Criminalizing nondisclosure showcases how law is undergirded by a set of emotions, notably those related to punitive mentalities.

Defined as a feminist investment in state power through law-and-order interventions and solutions to social problems, Bernstein (2012) described carceral feminism as ‘a cultural and political formation in which previous generations’ justice and liberation strategies are recast in carceral terms’ (p. 236). For example, since the 1970s violence against women advocacy has witnessed the emergence of a more punitive victims’ rights movement that ‘helped to facilitate the carceral state’ (Gottschalk, 2006, p. 115). Greater investment in criminal justice responses is evidenced by the trend toward ‘providing services for abused women in professional therapeutic settings and fighting for tough legislation to make it easier to convict and punish men accused of rape or domestic violence’ (Gottschalk, 2006, p. 122). Conversely, Gotell (2015) argues that feminist law reform has been more nuanced than critics acknowledge; noting that in Canada ‘rather than capitulating to a law and order agenda, feminists articulated a strong critique of punitive politics’ (p. 57). Subsequently, she maintains: ‘We cannot simply turn our backs on law. The absolute rejection of criminalisation strategies might well have the effect of re-privatising sexual violence, with the inevitable return of impunity for perpetrators’ (Gotell, 2015, p. 53). With this caution in mind, we take up the carceral feminist critique that incarceration, as the preeminent legal response, strengthens carceral state power that reinforces the oppression of vulnerable people, especially the poor and people of colour (Whalley & Hackett, 2017). Gotell (2015) acknowledges this, adding that ‘feminists need to appreciate law as a site of discursive struggles, with contradictory implications’ (p. 61).

Criminalizing HIV nondisclosure, which in Canada is primarily punished through sexual assault laws, expanded carceral state power and cultural understandings of sexual assault. In the 1998 Cuerrier decision, the Supreme Court of Canada interpreted the failure to disclose as vitiating consent, turning consensual sex into assault regardless of whether there was any intent to transmit HIV or transmission actually occurred (Mykhalovskiy, 2011). Gotell (2015) contends that judicial decisions in sexual assault cases have ‘individuated norms of criminal law’ that ‘reconfigured’ sexual citizens as ‘rational economic subjects, assuming responsibility for their actions and the risks that they take’; however, legally producing ‘risk-managing subjects who diligently practice sexual safekeeping’ has not ‘become … [the] privileged … technique for managing’ the ‘social and political problem’ of HIV nondisclosure (p. 63). Unlike the victim-blaming against which feminists have long mobilized (Gotell, 2015; Whalley & Hackett, 2017), the law’s intervention in HIV nondisclosure cases is neoliberal only insofar as it manufactures a duty to disclose for PLWHA (Adam, 2006; Hoppe, 2018; Kilty & Bogosavljevic, 2018; Levine, 2012; UNAIDS, 2013; Weait, 2007, 2016). Criminalizing nondisclosure absolves HIV negative people of responsibility for managing their own risks and enables them to blame PLWHA for exposing them to a sexual health risk.

My personal beliefs are I am responsible for me. So that fat, middle-age businessman from the suburbs who’s downtown picking up the Aboriginal, 14-year-old, HIV-infected girl – he’s responsible for getting HIV, not her for disclosing. He’s going to blame everything from the medical to the justice system to the prostitute herself for not disclosing, but we know the rules of the game, and we played it anyway. It’s self-responsibility. At the end of the day it’s not your responsibility to meet my needs for things like safety or respect. If you don’t meet them, that’s not your job; it’s my job. So ultimately, when I sacrifice the need for safety, I sacrificed it; no one did that to me, as much as I want to blame them. (male, 50)

Filtering HIV nondisclosure through a risk management lens not only facilitates a legal redefinition of sexual assault, it also disappears the vulnerability of PLWHA who are recast as always-already potential sexual predators (Hoppe, 2018; Kilty & Bogosavljevic, 2018). As Tudor (2003) maintains, fear is ‘mediated through the physical, psychological, cultural and social environments in which it is located’ (p. 240). However, a risk averse carceral feminist approach in this context harms women.

There’s a simultaneous paternalism of, we must protect women from bad sexual behaviour by men – that’s usually the framing, and that is what’s driving the law, especially because the law that is being invoked is the law of sexual assault, so there’s already an existing narrative of, predominantly, men engaging in objectionable behaviour vis-à-vis women as their sexual partner. At the same time, there is certainly a different demonization and stigmatization of women living with HIV posing a threat to their male partners. (male, 45)

If we accept that emotions are ‘constituent elements in our actions’ (Tudor, 2003, p. 240) we can understand how fear of HIV/AIDS emerged as a cultural response to nondisclosure. Participants discussed how the stigma that PLWHA face leads to emotional responses, including outbursts of anger, fear, disgust and vengeance if they fail to disclose. These same emotions structure punitive criminal justice mentalities (Abrams, 2015; Hoppe, 2018; Johnson, 2009; Sarat, 1997) and are features of the carceral feminist approach to nondisclosure. Linking the emotional desire for retribution as the solution to the social problem of sexual violence, Whalley and Hackett (2017, p. 460) contend that mainstream feminists and anti-rape organizations link ‘ “legitimate” victim status to engagement within state institutions’.

The punitive core of carceral feminism is marked by a desire for retribution for being exposed to or contracting HIV, which involves naming, shaming and blaming PLWHA to protect the HIV negative public. As one participant put it: ‘But it’s like a war. The current mentality is warlike mentality. We’re going to suppress you; we’re going to lock you up’ (male, 45). If ‘the affective dimension of speech coordinates the spectator in the direction of a collective political commitment to action’ (Vitellone, 2011, p. 591), we can link the fear and anger expressed by an individual after being unknowingly exposed to HIV to the growing push to criminalize nondisclosure, something about which participants were unanimous.

Fear coupled with a desire on the part of people who are HIV negative to abdicate any degree of responsibility for safer sex and HIV prevention – that desire plus that emotional fear and sense of betrayal leads to support for a very punitive, broad use of the law. (male, 45)

The fact that criminalization targets already marginalized people with the punitive arm of the state is neglected, or, worse, acknowledged and summarily dismissed signals how it is possible for emotions like anger to overwhelm feelings of empathy. To be clear, anger is legitimate and often necessary (Gould, 2009), as the #metoo movement has powerfully demonstrated. What concerns us is how the act of ‘punishing disease’ (Hoppe, 2018) replaces the bad feelings (i.e. anger, fear, betrayal, resentment) expressed by the individual whose partner did not disclose, with more bad feelings (i.e. retribution reimagined as justice), this time directed at the individual who has complex feelings of their own (i.e. shame, sadness) vis-à-vis disclosure.

Criminalization threatens the ontological security of PLWHA and intensifies the emotional labour of disclosure; it also complicates the nature of counselling safe disclosure practices for ASO workers who report that they spend more time managing PLWHA’s anxieties about disclosure than they have in the past.

That’s personally frustrating because someone all of a sudden is faced with a situation where they believe they’ve been put at risk, and they’re experiencing all these emotions. It’s like having to be a ballerina, you’re always on your tiptoes trying to make sure you’re stepping in just the right spots and doing the right steps so that nothing else gets messed up. But those are the emotionally harder ones because all you’re hearing is the anger towards this person who could potentially be your client. And you know that that person may be in this miserable situation of having no reasonable choice but not to disclose, and they’re just angry, and they just want to punish. (male, 30)

One of the most devastating consequences of criminalization is that it is leading people to avoid testing in order to protect themselves from criminal liability (Adam et al., 2008; Galletly et al., 2012; Kesler et al., 2018; Mykhalovskiy, 2011). In a similar way, carceral responses do not eradicate sex work but rather displace it to spaces that are more dangerous for workers (Bernstein, 2012). Participants feared that criminalization is reframing HIV as an exceptional illness that must be managed through criminal justice intervention rather than through public health.

The fear of the 80s is still alive and well … It just pisses me off because why does this get treated like this when I’ve seen people that exposed other people to TB, and I’ve seen a person die from TB, but they don’t get treated the same, but HIV, it’s, ‘we’re going to throw the book at you’. And that seems to be the standard response is that fear tactic. You look at the HIV boom that happened here in the mid-2000s and is still happening; is this helping or hindering people getting tested, people getting treatment, people coming out about it? (male, 30)

In this way, the carceral feminist agenda that sees HIV as so dangerous that it is criminal not to disclose also generates a series of ‘negative’ emotions among PLWHA. Disclosing that you are HIV positive is intensely emotional and stressful (Duffy, 2005; Kilty & Orsini, 2017; Parker & Aggleton, 2003). Next, we explore the emotionally laden nature of disclosure and the emotional labour performed by ASO workers.

The emotional labour of HIV (non)disclosure

The notion of emotion work gestures to an incongruity between what we feel and what we think we ought to feel in a particular situation. There are also times when our feelings do reflect the situation, but we are compelled to work on them anyway. For example, many PLWHA do not disclose because of shame or fear of intimate rejection or violence (Galletly et al., 2012; Galletly & Pinkerton, 2006; Hastings et al., 2017). Participants reiterated that their clients expressed these points.

I’m still faced with the ethical dilemmas of asking someone to choose between potential criminalization and potential bodily harm. And that comes up a lot, especially with folks involved in transactional sex. You have clients saying, ‘I could go to jail, but if I tell my manager, I could get killed, or I’m at least going to get beaten up really intensely.’ It’s miserable. (male, 30)

Participants also spoke of the emotional tension when PLWHA broach the issue of disclosing to a new partner; namely that they fear rejection because of their HIV positive status while simultaneously desiring human intimacy and connection.

Everybody wants to be in a relationship; they want to be with someone who they can relate to. Almost all of them say that they will never be in a relationship with someone who is not positive because they don’t want to face disclos[ing] and then get shut down. I feel terrible for them being in that situation and always having that fear of being rejected. (female, 20)

It was common to hear participants recount how their clients would either abstain from sex or seek out HIV positive partners to avoid the legal necessity of disclosure. ⁴ While many participants recognized ‘that every person has a right to satisfying, consensual, loving or just plain pleasurable sex life’ (female, 30), they also appreciated the emotional and contextual issues that can hinder a person’s ability to be forthright with a new potential partner. Despite this emotional conflict, criminalization necessitates working on and overcoming those feelings and forcing oneself to disclose to avoid accusations of criminal liability.

The existence of social and cultural feeling rules that intimate what we should feel can lead to two types of responses – ‘stopgap measures’ and ‘long-range gradual efforts’ (Hochschild, 1979, 1983/2003). Participants described the legal duty to disclose as failing to grasp the complexities of what it means to live with HIV. Still, the looming presence of criminalization encouraged them to advocate PLWHA ‘work through’ their fears around disclosing, feelings of shame and desire to connect intimately with another person.

Our best practice tends to be: unless your safety is compromised, please disclose because overall, that’s what’s going to be best for you. Disclosure overall – other than safety issues where you feel it’s unsafe to disclose – is probably better off for you in the long run. And that’s oversimplified because we’re not talking about trauma; we’re not talking about all of these other things that people living with HIV deal with every day in terms of stigma and discrimination, but it’s sometimes the best advice we can offer. (male, 30)

Alternatively, we can think of anonymous sexual encounters as an example of Hochschild’s ‘stopgap measure’. For example, bathhouses hold the expectation of ‘buyer beware’ as disclosure is not expected (Adam, 2006; Adam et al., 2008; O’Byrne, 2012; Simoni & Pantalone, 2004).

When I do outreach at the bathhouse, [and] I know someone’s positive and that they may not be taking their meds and I see them engaging in condomless anal sex with another individual, and I know there was probably no discussion, I am pretty much helpless to do anything. I’m bound by my own professional ethics that kind of put me in a bad position with that. So that’s a little frustrating; I can try and do some education with both those individuals somewhere along the way, but other than that, I don’t have much – that I know of – recourse in those situations. (male, 40)

This context-specific display rule muddies broader feeling rules around (non)disclosure. For some, avoiding intimate connections that involve trust, openness and honesty may generate feelings of guilt, which can aggravate feelings of shame (Duffy, 2005; Parker & Aggleton, 2003; Sedgwick & Frank, 1995). ASO workers are professionally required to reinforce rule reminders that ‘everyone has the right to know’ and that people may be disturbed or angered if their sexual partner does not disclose that they are HIV positive before engaging in a sexual act. Support work requires that they address their clients’ feelings of shame for testing positive while encouraging disclosure and ensuring that they do not reinforce feelings of shame their clients may have if and when they did not disclose.

Imagine having just been diagnosed with something – and then the very next thing you’re told is you’re a potential criminal, and you need to be scared. I mean hello, are you not scared enough already? Are you not already in enough shock and distress about having heard really unpleasant news? That’s a very disempowering way to try to make sure people have information. (male, 45)

Sedgwick describes affects like shame as ‘free radicals’ because it ‘[a]ttaches to and permanently intensifies or alters the meaning of almost anything’ (in Anderson, 2014, p. 62). Affects, broadly speaking, ‘are, attached to things, people, ideas, sensations, relations, activities, ambitions, institutions, and any number of other things, including other affects’ (Sedgwick, 2003, p. 19). As Anderson adds (2014, p. 6), affects enjoy a freedom ‘to combine with more or less any aspect of life’. While Hochschild’s work is foundational in terms of thinking about how and to what extent the rules shift regarding what is appropriate to feel, the ever-shifting nature of affective life is useful in imagining the ASO as a dynamic space where different and sometimes competing affective intensities and public feelings emerge. Berlant’s (2011) notion of ‘cruel optimism’ and Cvetkovich’s (2012) examination of depression as a public feeling move beyond facile distinctions between positive and negative feelings, ‘so as not to presume that they are separate from one another or that happiness or pleasure constitutes the absence or elimination of negative feeling’ (2012, p. 6).

Negative experiences following disclosure can ‘devastate an individual back into a closeted space’ (male, 53), highlighting contradictions between experience and idealized expectations, and how individuals must manage a shifting affective terrain. Criminalization creates both a right to be informed of someone’s HIV status and a duty to disclose, thus defining the emotional contours surrounding (non)disclosure, including the extent to which ‘victims’ are legitimately able to express anger about nondisclosure, the direction of their emotions (anger toward their partner and/or themselves) and the duration of that feeling. One participant summed up the right/duty dialectic in this way:

You have to let some of that anger go. And in the conversation, he kept saying, ‘She had a responsibility to tell me.’ And I said, ‘Yes, she did; however, I need to point out, the only person that we know tells the truth is to ourselves’, right? So, we ultimately also have a responsibility to ask the question. ‘Did you ever ask her? Did you ever bring condoms?’ ‘No.’ So yes, my answer is I think it’s both-sided. (female, 50)

In that ‘these rights and duties of feeling are a clue to the depth of social convention, to one final reach of social control’ (Hochschild, 1979, p. 564), they indicate the degree to which criminalization embodies only one facet of affective and emotional expression. While criminalization is underscored by punitive emotions, when individuals are convicted in a court of law, their own emotions disappear from public view. Next, we examine ASO staff frustration with criminalization as a public health strategy to combat HIV.

ASO emotion work in the shadow of criminalization

For ASO workers, counselling safe disclosure practices involves emotion work that can require them to suppress their feelings of shock, anger or disappointment when a service user does not engage in safer sex, which may challenge their feelings of compassion (Vitellone, 2011). It also requires that they are able to invoke feelings of empathy when a service user reports that they felt unable to disclose. ASO staff, some of whom are also HIV positive, also mobilize their own emotions and personal experiences to help mitigate their clients’ feelings of fear and shame so that they will adopt safe disclosure practices (Kilty & Orsini, 2017).

If framing rules determine how ‘we ascribe definitions or meanings to situations’ (Hochschild, 1979, p. 566), it is unsurprising that ASO workers reject the criminalization frame as an effective HIV prevention strategy and instead support a public health frame that advocates prevention through education and health promotion.

We want to stop the spread of HIV. That’s the goal. So yes, we need to get the public to this place where they understand that using the criminal law to try to modify people’s behaviour is an instrument of last resort and that in lots of public health areas, it simply doesn’t work. It’s an instrument that’s used to punish PLWHA. It doesn’t prevent the spread; it doesn’t protect people. In fact, it has the opposite effect of its intended effect, which is exactly what you don’t want. (female, 30)

I think it’s ridiculous. I really do. I don’t think people should be incarcerated or charged because of disease transmission. It’s a natural occurrence. That’s how diseases occur. People don’t get charged with giving somebody chlamydia, although that could change your probability of having children and change the outcome of your life forever. I’m kind of pissed off. You know what I mean? I can’t believe that in this day and age – with all the knowledge and information and evidence that’s out there – that people can still be incarcerated and criminalized over disease transmission. It’s insane. It’s very infuriating. (female, 40)

These ASO workers reject the very premise of criminalization – that it will somehow encourage disclosure and make the body politic safer. Hochschild (1979, p. 566) contends that feeling rules ‘are implicit in any ideological stance’, which means that anger, fear and disgust are implicit in the criminalization of HIV nondisclosure. Yet people may defy an ideological position by way of inappropriate affect or ‘by refusing to perform the emotion management necessary to feel what, according to the official frame, it would seem fitting to feel’ (Hochschild, 1979, p. 567; 1983/2003). Here we see that ASO workers have not internalized the ideological underpinnings of criminalization, which may be related to their exposure to PLWHA’s feelings about criminalization and the complicated nature of disclosure. Having a different interpretive and thus ideological frame that is supported by international organizations like the UN (Levine, 2012; UNAIDS, 2013), ASO workers assume a set of feeling rules around (non)disclosure that more readily accept the context-specific nature of disclosure and that subsequently understand nondisclosure as a reasonable course of action in situations where the person is at risk of violence or intimate rejection. In this way, ASO staff are caught between their personal moral and ethical views on (non)disclosure and the legal expectations created by criminalization – a tension that shapes how they counsel their clients.

The things that cause the most gut-gripping frustration is where it seems like everything is stacked against a person and there’s just no way out. They have a family that has abandoned them because of their status; they have a pimp who will cut them off from their income because of their status. They may be involved in homelessness or addictions. Not disclosing is the least of their worries because of everything else going on in their world. ‘I can’t blame you. I can’t – ethically, reasonably and logically, you are making the best choice for you right now.’ Those are the ones that fill me with despair because all you can do is just tear up and say, ‘Yeah, that sucks. I don’t know what else to say. I can help you as best I can, but realistically, that’s awful. I hope we can figure out new ways to help you.’ (male, 30)

Participants consistently described sexual health and safety as a collective responsibility rather than the individual burden of PLWHA. This belief informs their sense of rights and duties around disclosure, which is evidenced by their feelings of anger and frustration toward criminalization and toward the host of issues facing PLWHA that are aggravated by criminalization. Participants spent a lot of time discussing these intersecting points of vulnerability.

You can take medication; you can have an amazing life, but the emotional aspect of things is what’s quote-unquote killing people. (female, 30)

The lack of understanding of safety, danger, trauma, history of violence, historical trauma – especially when it’s Aboriginal folks – an entire group that has experienced generations of trauma and a huge part of that being sexual trauma that leads to violence and everything else. They’re all tied together, along with poverty and isolation and everything else. It’s not tied to science, so it just creates more dangerous situations for people, and it’s heartbreaking and frustrating because it continues to victimize people. (male, 30)

Many PLWHA must choose between failing to disclose and risking criminalization, or disclosing and the risk of experiencing violence, financial instability, and the shame that flows from intimate partner rejection and community and/or familial ostracizing. Frustration is not an isolated emotion, however. It is linked to feelings of empathy (for PLWHA) and despair, and highlights the contradictory emotions ASO staff must manage in their professional lives.

You feel empathy for the person, you feel anger for the person that’s putting them in danger. You feel frustration at the government that adds to that, that danger. And so, all of these things happen at once – all of these emotions sort of cascade all at one time while you’re just really trying to help someone be healthy … It’s heartbreaking, and it’s exhausting, and there are some days that the emotions behind it are so overwhelming, you just need to go away. (male, 30)

Participants were clear that criminalization creates additional stress in an already emotionally laborious profession. It is ‘emotionally tough’ and even ‘exhausting’ for frontline staff to balance the conflicting emotional demands that this work entails. It is also important to recognize that this emotional labour is occurring within a professional climate that is chronically under-resourced (Kilty & Orsini, 2017; O’Byrne, 2012).

Conclusion

Shame and stigma remain important markers of an HIV diagnosis, felt differently depending upon one’s social, political and economic location. The ASO is one of the key sites of struggle where these emotions and feelings are mobilized and managed. Not only do ASO staff deal with individuals who have not disclosed their status to sexual partners, they also confront individuals who may be coming to terms with an HIV diagnosis as a result of an encounter with someone who did not disclose. Our interviews revealed that ASO workers navigate a series of emotions and affective responses, including their own feelings about criminalization, supporting people who have disclosed or not, and counselling people who may have been exposed by a partner. While an individual in an ASO might be politically opposed to criminalization, this might not be helpful when trying to manage the jumble of emotions that emerge in encounters with service users.

While the history of HIV is laden with emotions, what has changed in the age of carcerality is that certain emotions – shame, fear and anger – have been resuscitated through forms of state power that remake PLWHA as criminal subjects (Adam, 2006; Hoppe, 2018; Kilty & Bogosavljevic, 2018). The complexity of the epidemic demands that we mobilize insights from a range of fields to understand how the terrain of struggle is structured by a mix of emotions and affects that have attached to an overwhelmingly punitive turn in the management of public health and infectious disease. The challenge is to resist the urge to replace bad feelings with good ones (Cvetkovich, 2012, p. 6).