‘It takes two to tango’: HIV non-disclosure and the neutralization of victimhood*

Abstract

There is a rich and fulsome literature on victims and the processes by which certain groups or individuals come to be constructed as victims. Less attention has been paid to the rhetorical moves employed as counter strategies by groups who seek to challenge victim status and the use of the ‘victim’ label for particular groups. Using the debates around the criminalization of HIV non-disclosure as a case study, the aim of this paper is to contribute towards a better understanding of efforts to deny or neutralize victimhood. The paper identifies several strategies utilized by individuals and groups, the object of which is to raise questions about the appropriateness of a criminal response to HIV non-disclosure by constructing those who have had intimate encounters with HIV non-disclosers as equally responsible for their circumstances rather than as victims of non-disclosers.

Keywords

HIV non-disclosure criminalization victims social constructionism

Introduction

For over a decade, there has been an increasing trend in the direction of charging those who do not disclose their HIV-positive status to their sexual partners with a criminal offence. The criminalization of non-disclosure represents a departure from initial responses to the HIV epidemic which emphasized a public health approach in dealing with such cases, along with campaigns aimed at educating individuals about responsible and safe sex practices (Dej and Kilty, 2012; Mykhalovskiy and Betteridge, 2012; Mykhalovskiy et al., 2010). The trend towards criminalization has been occurring throughout much of the Western world with the highest number of criminal charges being laid in the USA and Canada. Unlike many states in the USA, Canada has no specific law that criminalizes HIV non-disclosure. However, pre-existing criminal legislation has been used to sanction non-disclosers; the most likely charge to be used for this purpose is ‘aggravated sexual assault’ (Dej and Kilty, 2012). The formal connection between HIV-exposure/transmission and aggravated sexual assault was established with the 1998 precedent-setting Supreme Court ruling in R v. Cuerrier. While the two women who were exposed to HIV in this case consented to sex with Cuerrier, they were not informed about his HIV-positive status. According to the ruling, the absence of disclosure nullified the consent and rendered the sexual activity an act of ‘fraud’ (Tan, 1999). The ruling ultimately set out the parameters by which individuals could be charged for not disclosing their HIV-positive status to a sexual partner (Dej and Kilty, 2012; Mykhalovskiy, 2011).

Elsewhere (Speakman, 2017), I have argued that the trend towards criminalization has both fueled and been fueled by a discourse that has successfully constructed individuals who engage in sex without first disclosing their HIV-positive status as villains and their partners as victims. In that paper, I considered how those who do not disclose their status – or HIV non-disclosers – are constructed as villains. I coined the term techniques of vilification to describe the strategies involved in that process.

In this paper, I turn my attention to the claims made by those who oppose the criminalization of HIV non-disclosure. More specifically, I look at the argument that HIV non-disclosers should not be made to bear the full brunt of responsibility for a decision that they made together with their partners, that is, the decision to engage in unprotected sex. This argument, often referred to as the ‘it takes two to tango’ position, relies on the assumption that in an environment where the threat of HIV/AIDS continues to be real and where public health messages for the past 30-plus years have been emphasizing the need to always practice safe-sex, it is not appropriate to think in terms of victims and villains and, therefore, to criminalize the behaviour of non-disclosers. Those who take this position insist that both parties are implicated in the decision to have unsafe sex.

As I see it, the ‘it takes two to tango’ position can be viewed as an effort on the part of those who oppose the criminalization of HIV non-disclosure to counter the construction of non-disclosers as villains by undermining the construction of their partners as victims. The process of challenging or neutralizing claims to victim status is the central concern of this paper.

My framing of these concerns relies heavily on the social constructionist perspective on social problems, so I begin with a brief overview of the perspective. I then describe the data I used for my analysis and present my findings, along a with a brief discussion of the case study that this analysis was largely based on – the case of Johnson Aziga. I discuss a number of strategies used by those who subscribe to the ‘it takes two to tango’ argument to neutralize the claims of those in favour of the criminalization of HIV non-disclosure. More specifically, I look at how they undermine the construction of the partners of HIV non-disclosers as victims in an effort to weaken the case for criminalization. This paper ends with a discussion of the implications of these findings, both in connection with the HIV non-disclosure debate and more generally for any debate where the victim status of a particular group is being contested.

The social construction of social problems

This analysis is situated within the social constructionist perspective as it has developed in the sociological study of social problems. The perspective was most clearly articulated in the seminal work of Spector and Kitsuse (1977), who argued that sociologists of social problems would do well to shift attention away from an understanding of social problems as objective conditions and focus instead on how certain conditions come to be defined as problematic. Since what constitutes a social problem is a matter of social definition and changes over time, they insisted that those concerned with studying social problems ought to analyse the processes by which conditions are subjectively constructed as problematic. They coined the term claims-making to focus attention on those processes, which they regarded as the proper subject matter for a sociology of social problems.

In the years since the publication of Spector and Kitsuse’s work, the social constructionist perspective has become, arguably, the dominant perspective in the field, generating hundreds of case studies (Best, 2015) and ongoing debates about its assumptions and possibilities. Recently, the journal Qualitative Sociology Review devoted an entire issue to the continuing relevance of the perspective and new frontiers that social constructionists are exploring. Social constructionists such as Best (2003, 2012, 2015), Ibarra and Kitsuse (2003), and Holstein and Miller (2003), to name just a few, have contributed significantly to the ongoing conceptual evolution of the perspective. For the purposes of this paper, however, the refinements proposed by sociologist Donileen Loseke are particularly pivotal.

Building on Spector and Kitsuse’s original formulation, Loseke (2003) specified more finely that social problems claims-making involves three interconnected elements – the construction or typification of conditions, people and solutions. Conditions are constructed through the use of diagnostic frames, which essentially identify and characterize a set of social conditions as objects of concern. People are typically constructed using motivational frames, that is, frames that personalize the social issues, characterize those connected with the issue as either victims or villains and tell audiences why they ought to care. Solutions are proposed in the context of prognostic frames, which lay out the possibilities as far as remedial action is concerned.

The frame most relevant to this particular analysis is the motivational frame. Again, motivational frames seek to engage audiences emotionally with an issue by pressing claims in ways that get the audience to focus on people and how they are either harmed or detrimentally affected by the condition, or responsible for perpetrating the harm. Loseke suggests that most motivational frames follow a formula story which involves constructing some players as victims and others as villains. Underlying these constructions are a society’s cultural feeling rules – culturally established norms about how we ought to feel about different categories of people. Victim typification relies on feeling rules pertaining to who we deem deserving of sympathy, such as the young, the innocent, or the ‘undeserving’, while villain typification relies on feeling rules about whom it is appropriate to demonize or condemn – those who cause great harm intentionally and without justification.

The case of the criminalization of HIV non-disclosure presents interesting questions in relation to Loseke’s formulation in that it represents a situation where the appropriateness of applying a ‘victim’ label to a particular group is being openly contested by counter claims-makers. Therefore, the case offers a unique opportunity to interrogate not how victims are constructed, but how such constructions are contested as part of a counter claims-making strategy.

Method

While the overall analysis is based on discussion and debate surrounding the criminalization of HIV non-disclosure more generally, one particular case – the case of Johnson Aziga – was used as a focal point due to its high level of notoriety to access these conversations. Aziga, a native of Uganda who immigrated to Canada in 1996, was arrested and charged in 2003 for not disclosing his positive status to multiple sexual partners, subsequently infecting seven of them. Two of these women died from AIDS-related cancers not long before the trial. In 2009, Aziga was convicted of two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault. He was later deemed a dangerous offender by the judge because it was believed that he was at high risk of re-offending. The dangerous designation is typically reserved for Canada’s most violent offenders and dangerous sexual predators. The Aziga case is the first case in the world where HIV non-disclosure has resulted in a successful murder conviction (DiManno, 2009). There was considerable media coverage of the Aziga case, locally, nationally and internationally. In addition, the case prompted considerable discussion and debate on social media as well as other internet spaces. While some of the discussion centered on Aziga, much of it dealt in a more general way with questions of whether non-disclosure ought to be criminalized and who bears responsibility in cases of non-disclosure. Other cases were also brought into the conversation, most notably that of Steven Boone. Boone, an Ottawa resident, was convicted of attempted murder and aggravated sexual assault (Gurney, 2012). His case received much attention from the gay community largely because, in Canada, charges are pressed primarily against men who have sexual relations with women, whereas this case was one of the few where a gay man gained significant notoriety in the press for not disclosing his positive status to his male sexual partners.

Between the court documents, media coverage, and online debates that the Aziga case generated, there was an abundance of data to analyse. The larger project analysed court appeals and rulings in the Aziga case as well as Canadian newspaper articles dating from 2003 to 2014 that had any mention of Aziga in them. For this particular paper, I have pulled primarily from the data collected from the internet search. The emphasis has been placed on the internet ‘chatter’ for this analysis because this is where discussion of victim-types was most prevalent. I located much of this data by entering the search term ‘Johnson Aziga non-disclosure’ into the Google search engine. Once Google and I accounted for repeat entries and any overlap with the news articles already collected, a total of 95 documents was analysed. These documents ranged in size and formality.

Some of the more ‘formal’ spaces of discussion of these issues included Queerty (www.queerty.com), a news site geared toward LGBT issues, and Slate magazine (www.slate.com), an online magazine dealing with politics, culture and current affairs. In addition to analysing the articles themselves, the comments following the articles were also included as part of the analysis.

As part of the general search, much more informal discussions pertaining to the Aziga case and the issue of criminalization of HIV non-disclosure more generally were generated. Some of the spaces where these discussions took place include Plenty of Fish (Plenty of Fish, 2007), an online dating site, as well as Fitness Pal (www.fitnesspal.com), a website that provides tips and tricks for losing weight along with a supportive social network. In addition to these conversations, blogs mentioning the Aziga case were also included for analysis.

An analysis of discourse found in on-line spaces offered several advantages. First and foremost, this approach granted access to a broader range of points of view on the question of criminalization than would be found simply by analysing court documents and newspaper articles, offering more nuanced insights into how those involved are typified. Second, in addition to the opinions of those most directly involved in the debate, including lawyers, activists and organizational representatives, I was able to get a sense of what readers of news stories and members of the general public thought about these issues. Moreover, since the web allows individuals to express their views anonymously, the access that I had was in many cases unfiltered. In other words, my sense was that the contributors were ‘talking freely’ and that I was seeing their ‘true’ feelings.

For this research, I chose to use an unobtrusive media analysis, meaning that I had no contact with the commenters and made a point not to enter any space that was not public domain. As a result, I was able to gain access to rich and fulsome data. However, I was unable to further delve into the motives of the commenters or ask follow-up questions that may have provided clarification on some points made. It should also be noted that I was unable to ascertain, with any certainty, the demographic characteristics of the population discussing the criminalization of HIV non-disclosure generally, and the construction – or neutralization – of victim status more specifically.

Using analytical concepts informed by the social constructionist approach to social problems to guide me, I read through the data and identified relevant themes pertaining to the social processes of typifying people-categories. Once I was able to establish some clarity regarding the emergent patterns I was seeing, I went back over the data and looked more carefully for strategies of victim neutralization. I discuss these strategies in the following section.

Strategies of victim-status neutralization

To address how the victim status of those who have been intimate with HIV non-disclosers is challenged, it makes sense to begin with how those individuals are constructed as victims in the first place. According to Loseke (2003), ‘good victims’ exhibit a range of features and characteristics. To the extent that individuals can be shown to have suffered horribly, to be not responsible for the harm caused to them, and to be morally worthy as opposed to belonging to some socially devalued group, they are more likely to be able to generate audience attention and sympathy (Loseke, 2003).

These are the very qualities that permeate the construction of the victims of non-disclosers in the rhetoric of those who favour the criminalization of non-disclosure. That rhetoric emphasizes the ultimate harm that victims of non-disclosers suffer in cases where they die as a result of HIV/AIDS, but also the harm suffered in living with the uncertain prognosis that goes along with the diagnosis or even the possibility that as a result of exposure, one may eventually test positive. Harking back to language used in the early days of the epidemic, victims are described as having been put at risk of contracting ‘a terminal disease’ or ‘a death sentence’. The physical harm connected with HIV/AIDS is presented in terms of personal stories of the agonizing suffering endured by specific individuals. Heterosexual women rather than gay men feature particularly prominently. So too does the notion that victims of non-disclosers were unsuspecting and that they were betrayed by non-disclosers who either lied about their HIV status or took advantage of their trust (Speakman, 2017).

To contest these constructions, those who oppose criminalization have adopted a series of strategies, most of which focus specifically on challenging the innocence of victims. The first strategy involves claiming that victims ought to have known better, that is, that they were or should have been aware of the potential risks connected with having unprotected sex. The second strategy focuses on the agency of the victims and the choice they ultimately had about participating in the sexual encounter. The third strategy involves buttressing their claims using the voices of HIV-positive individuals who refuse to adopt the victim label and who argue that they have a share in the responsibility for contracting HIV. I will discuss each of these in turn.

They ought to have known better

Those who challenge the victim status of individuals who have had encounters with non-disclosers rely heavily on the observation that since the discovery of HIV/AIDS there have been massive efforts to educate the public about the dangers of unprotected sex. This observation becomes the basis for a claim that, at this point in the epidemic’s trajectory, safe-sex practices have become both a matter of common knowledge and common sense. To argue that one ‘did not know’ is either a deceit or reflects a state of ignorance so reckless as to itself be problematic. Those who know can hardly be viewed as unsuspecting. Those who did not know are cast as individuals whose ignorance is so extreme, incomprehensible and wantonly reckless that they bear some burden for what happens to them as a consequence. In the Steven Boone case, the gay man in Ottawa charged with attempted murder, an article in Queerty elicited the following comment.

Unless they [his victims] have been living under a rock for the last 30 years, they cannot play innocent that HIV infection might be a possible outcome. (Tedder, 2010)

A blogger discussing the Aziga case as well as the case of a young woman who was charged in Canada for not disclosing her positive status to her sexual partners argues,

in an age where the occurrence of sexually transmitted infections is resurgent and knowledge of the risks of HIV and AIDS is widespread, you have to wonder why the other person in the equation took the risks they took as well…[they] may not have been aware that their partner had HIV, but they were undoubtedly aware of the fact that an unsheathed penis was going to be penetrating an orifice that itself was a la mode. (Deep Cortex, 2011)

The comment above demonstrates particularly clearly how attention is deflected from the non-discloser to ‘the other person in the equation’ and what that person ought to have known about the risks inherent in having unprotected sex.

The effect of this strategy is that instead of being constructed as pitiable victims, those who have had encounters with non-disclosers are cast as individuals of questionable judgement and intelligence. In responding to an article on Slate discussing why criminalization of non-disclosure is problematic, one individual commented,

It’s incredibly stupid and irresponsible to assume that the person you’re sleeping with must be HIV-negative. That doesn’t mean it’s okay for HIV-positive people to fail to disclose their status before sex. It just means it’s a two-way street. (Schulman, 2014)

In the same comment feed, another individual notes,

I’m sorry, but in this day and age, excluding married couples and supposedly monogamous relationships, it’s 100% idiotic to have casual sex without a condom. Any adult that has casual sex without a condom and catches a STD is no more a victim than someone who willingly plays Russian roulette. (Schulman, 2014)

The problematization of victims’ judgements is accentuated through the use of analogies, such as the above Russian roulette comment and the following scenario.

An analogy would be if you got into a car at 2 am knowing there’s a fair chance the driver of the car had been drinking, never attempted to take the keys or inquire about the amount of alcohol consumed, and decided not to wear a seatbelt. Another example would be if you decided to walk down the middle of [the] highway and were then hit by a car. While it might be easy and convenient to shrug your [shoulders] and place responsibility for your safety on others, I’m suggesting your role and your actions should not be discounted, both morally and legally. (Schulman, 2014)

In both of the above scenarios, the assumption is that reasonable individuals are well aware of the risks involved and know better than to take a chance. Those who harm them – the drunk driver or the motorist – may not be totally absolved of responsibility, but those harmed have played a role in their own misfortune. Linking those who enter into sexual relationships with others armed with knowledge that they had – or should have had – effectively spreads the responsibility for the outcome. Taking a chance with unprotected sex is the equivalent of venturing on to a busy highway.

The claim that so-called victims ‘ought to have known better’ gets at least some of its force from the fact that the same observation is made to discredit the defence on the part of non-disclosers that they are not culpable because they did not know what they were doing. If non-disclosers cannot plead ignorance of the risks as a defence and are therefore forced to suffer the consequences of their actions, the argument goes, neither can those who have unprotected sex with such individuals.

They had a choice

A related strategy involves emphasizing the agency of the individuals involved. As Loseke (2003) points out, typifying individuals as victims works best when the victimization is constructed as random and individuals can be constructed as having done nothing that leads to their victimization. Drawing on the cultural theme of individual responsibility, audiences tend to sympathize more with those they perceive to have no responsibility for the harm they may be suffering. Other scholars who have written about how the concept of responsibility works have also commented on how responses to parties harmed are contingent on whether the individuals involved have acted in some way as to bring on the harm (Cross, 2015; Frisaufava, 2012). As Cross (2015: 189) notes in her work that examines how victims of online fraud typically do not elicit support or sympathy, ‘The popular discourse surrounding online fraud victimization is very much founded upon notions of blame and responsibility levelled towards the victims themselves for their failure to avoid victimization in the first place.’ To the extent that individuals can be said to have put themselves in harm’s way, they are less likely to be seen as victims.

Hence, rather than constructing the partners of non-disclosers as individuals to whom something is done, they are constructed as individuals with choices who have actively made a series of decisions that contributed to the outcomes that have so impacted their lives – decisions about whether or not to inquire about the sexual health of their partners, decisions about whether to take what they are told by their partners at face value, decisions about having unprotected sex and decisions about incurring the risks involved in doing so. They consented; they chose not to ask; they chose to believe what their partners told them; they chose not to use protection. This position was clearly reflected in a reader’s response to an editorial in The Globe and Mail.

Yet there must be some degree of responsibility and acceptance on both sides. If you decide to have sex with someone you accept some degree of risk – that they might not know they are infected with HIV for example. (Globe and Mail [comment] 2012)

Similarly, an online article written for asrsq.ca, a primarily French-Canadian site promoting citizen participation in matters of justice, asked,

Shouldn’t people who consent to unprotected sexual relations, through consent, also be considered to be consenting to a certain risk and assume responsibility for protecting themselves? (Lavoie, 2009)

There were similar reactions in the aftermath of the Aziga case. For example, while strongly critical of Aziga’s actions, this blogger felt that it was important to consider the actions of Aziga’s partners.

In this particular scenario, the risk taken by the victim was a massive contributing factor to the fact that they became a victim of something. (Deep Cortex [blog] 2011)

When the dangerous offender ruling in the Aziga case was announced, another individual wrote,

Does anyone have info on whether he gave fake documents that said he was clean? Because while I think this is a scummy thing to do, at the same time women have to take responsibility for their own actions to a certain extent. Just because someone says they are clean, doesn’t mean they are, and you should be using protection otherwise you need to know you are possibly endangering yourself. (SP411 [comment thread] 2011)

As the comment above suggests, there is an underlying gendered current in some of the discussions aimed at raising questions about the responsibility that victims bear. Those less inclined to see these individuals as victims use a feminist discourse to explicitly or implicitly reject the idea of women as passive actors, powerless to control their own fate, especially in matters related to their sexuality. Women, no less than men, are typified as agents with ‘minds of their own’, capable of making their own decisions and therefore responsible for the consequences of those decisions. Criminalization of non-disclosure, from their perspective, smacks of paternalism and sends the message that women need to be protected from male perpetrators. In a scathing criticism of the use of criminal sanctions in cases of HIV non-disclosure, one blogger stated,

Now, society locks up ‘HIV Monsters’ because it thinks female members of society need protecting from them, as if they did not have a sexuality or choice in whether or not to have sex with their suitor. (emphasis in original) (Bernard, 2011)

However, the argument is by no means restricted to women as victims. A tendency to reject the idea of victimhood can be found as well in cases involving gay men. This tendency may be a function of themes that have long characterized the conversation about sexuality and HIV within the gay community. The community has been at the forefront of advocacy for safe and responsible sex. Among those who are raising questions about the appropriateness of framing non-disclosure in terms of victims and villains, it follows that there would be a reluctance to legitimize the victim status of those infected by non-disclosers. In a comment feed following a discussion of the Boone case, one comment read,

Is it not a question of he said/he said? Obviously, those who had unprotected sex with Boone [chose] for themselves to act [with] careless disregard to their own protection. And, how can a fair judgement be made when the so-called victims willingly engage in unsafe sex?. (Tedder, 2010)

In the same comment feed, another member argues,

Where is the responsibility of the men he slept with? It doesn’t sound like this was non-consensual, so these men made a decision to have unsafe sex with someone they didn’t know and met online. It’s absolutely their decision to make, but they are well aware that they are putting themselves in a situation where contracting HIV is a real possibility. (Tedder, 2010)

The emphasis on agency within these forum discussions led to additional discussions about consent. Several participants in the discussion argued that the partners of non-disclosers could not be labelled as victims because they ultimately consented to the sexual encounter and all of the risks that go along with unprotected sex. One commenter, responding to a blog post, wrote,

I agree…that Aziga’s actions are monstrous. That said, every person is responsible for their own health. If there is consent to sex, there is consent to multiple medical risks. (Turley [blog] 2009)

In addition, an author of an article for another online source noted:

The gold standard many HIV advocates would like to see adopted centers around consent. They argue relying on consent reinforces personal responsibility without infringing on the right or ability of HIV positive people to choose not to disclose their status, and thus avoid stigma attached to the illness…if a person gives consent to have unprotected sex they are taking on the assumed risks and should be as culpable as the positive person. (Clarence, 2010)

To those who counter-charge that holding victims partially responsible for their own victimization is tantamount to ‘blaming the victim’, adherents of the ‘it takes two to tango’ position respond by qualifying the circumstances under which they would be prepared to see individuals as victims. When rape is involved, they point out, one can reasonably argue that individuals have been victimized because they did not consent and had sex forced on them. In all other cases, they insist individuals acted of their own accord. As one commenter puts it,

The victim blaming analogy falls apart because both individuals made a decision of their own free will to have sex with another person…Unless they were raped, everyone bears some personal responsibility in becoming infected with HIV through sexual encounter. (Schulman, 2014)

This sentiment was shared by others who felt that rape would be the only scenario where individuals were deprived of choice and, therefore, truly victimized.

A somewhat extreme version of the argument that those infected by non-disclosers are not victims posits that the complete recklessness demonstrated by certain individuals in the decisions they make about their sexual encounters actually reflects suicidal tendencies. In other words, the suggestion is that some individuals go into risky sexual encounters knowing and perhaps even expecting that the consequences may be life-threatening. They are, in fact, seeking to die. For instance, on a dating website where the discussion of a case of non-disclosure came up, one contributor noted,

Okay first of all, I have to say, it’s more like the woman chose to commit suicide, becuz why do we all forget that these women have a mind of their own…not to say his behaviour was correct, but we can’t completely forget that the act of sex requires two willing participants. (Plenty of Fish [forum])

In this version of the argument, the logic that non-disclosers are guilty of attempted murder leads naturally to the conclusion that those who intentionally make themselves vulnerable to the threat that non-disclosers pose are inviting the harm done to them. In relation to the Boone case, a commenter on Queerty noted,

So many people that support trying him for attempted murder seem to forget the inconvenient fact that his sexual partners willingly had unprotected sex with him. They made a choice. By the logic of the ‘attempted murder’ crowd, the sexual partners should be charged with attempted suicide. Fair is fair, after all. (Tedder, 2010)

The victim/villain table is almost turned in this formulation. Those infected bear most culpability by seeking out dangerous sexual encounters, while non-disclosers can almost be seen as victims of their designs.

‘I am not a victim’

The claims of those who take the ‘it takes two to tango’ position are buttressed by the voices of individuals most directly affected by an intimate encounter with a non-discloser, who reject the victim label for themselves and for others like them. These are individuals who understand the responsibility for protecting themselves against HIV infection as a shared responsibility and are therefore not willing to have non-disclosers unilaterally demonized, nor to have themselves painted as passive victims.

In an interview with an HIV-positive individual for HIV plus mag, the interviewer inquired about their opinion on matters related to the criminalization of HIV non-disclosure,

There were two actors in transmitting HIV from him to me. I am just as responsible. I’ve accepted my role. (Ryan, 2009)

Another individual was prepared to give his partner the benefit of the doubt as to whether he was aware of his HIV positive status at the time of the encounter. He goes on to assert, however, that whether the person was aware or not, both parties were involved in the decision to have unprotected sex.

I have recently discovered my status as positive. I assume that the person who transmitted this to me…did not know of their status. That being said, I still must take responsibility for my half of the transmission. I was in the room at the time. It is always a two way street, but moving forward, that does not remove me of my future obligation to inform my partners. (Globe and Mail [editorial comment] 2010)

Similarly, an HIV-positive woman writing about her experience in The Daily Beast commented,

While I was certainly upset at the man who gave me HIV, I am more upset with myself for choosing to risk my own life when, arguably, I knew better. (Hoffman, 2009)

In responding to the Daily Beast article, a reader elaborated further on, and affirmed, the logic of the position the woman took with respect to her own culpability.

[The author], who became HIV-positive after she had unprotected sex with a positive partner after inquiring about his status and, as she says, ‘took a calculated risk’, also argues that the criminal justice system puts too much blame and responsibility on the positive partner(s), rather than having both partners equally responsible in the event there is transmission…[The author] argues that if a person gives consent to have unprotected sex they are taking on the assumed risks and should be as culpable as the positive person. (Clarence, 2010)

It is difficult not to notice that the rejection of victim status on the part of those constructed as victims of non-disclosers is similar to themes stressed in the HIV/AIDS movement of the 1980s and 1990s. Those who have written about the history of the movement have drawn attention to the emphasis the movement placed on moving beyond self-pity to action and beyond victimhood to self-empowerment. People living with HIV/AIDS were encouraged to ‘challenge the perception of the disease as inevitably terminal’ (Gillett, 2011: 43) and to think of themselves as survivors rather than victims (Crossley, 1997). A goal of the movement was to mobilize the HIV/AIDS community to demand both attention and action. As part of the self-empowerment thrust of its message, the community itself took steps aimed both at improving service provision and prevention. And a strong thrust of the prevention messages was the responsibility that everyone bore to ensure that sex was practiced safely. In a sense, then, the movement created a context within which victimhood is rejected and responsibility for oneself and others is stressed. While these themes pertained to the HIV threat more generally, they find expression in how many individuals think about the disclosure issue.

That there are those who are prepared to publicly, forcefully and unequivocally reject the notion that they are victims undermines the argument of those who seek to villainize and criminalize non-disclosers on the strength of the harm that they and they alone have inflicted on their victims. When the alleged ‘victims’ refuse to see themselves as victims, arguing instead that they bear partial culpability, the case for those who seek to apply a victim/villain frame to the issue of non-disclosure is significantly weakened.

Discussion

This paper has identified and discussed a series of rhetorical strategies aimed at neutralizing the victim label in debates surrounding the criminalization of HIV non-disclosure. More specifically, I looked at how those who oppose criminalization advance the case for considering partners of non-disclosers not as victims but as individuals who share with non-disclosers responsibility for any harm they may have suffered. They do so by asserting that: (a) these individuals knew (or should have known) about the risks connected to having unprotected sex; (b) they exercised agency in making a series of decisions that contributed to their predicament; and (c) some individuals in this predicament will themselves reject the victim label and concede that they bear some responsibility for the outcome.

In relation to the HIV non-disclosure debate, the findings contribute towards a more in-depth appreciation of the shared responsibility and anti-criminalization side of the debate and rhetorical constructions its proponents use to challenge current understandings of non-disclosers and their sexual partners. Yet, criminal charges continue to be laid against non-disclosers, non-disclosers continue to be seen as criminally culpable, and their partners continue to be seen as victims. This suggests that while proponents of the ‘it takes two to tango’ position have been sufficiently vocal to keep the debate going, they have not been sufficiently persuasive to stem the tide towards criminalization. Though they have attempted to address head on the charge that their position amounts to ‘blaming the victim’, it appears that this is precisely how their arguments are heard.

Even as debate continues, however, the ground on which it is occurring is shifting. A potentially game changing development in the area of HIV-related drugs is preventative drugs such as PrEP (Pre-Exposure Prophylaxis). PrEP gives individuals who are at high-risk of HIV infection a means to reduce that risk. How the availability of PrEP will change the terms of the non-disclosure debate is uncertain. It may be that new, efficient pharmaceutical ways to protect oneself against infection will strengthen the case of those who argue that safe sex is a shared responsibility and that partners of non-disclosers should not be viewed as victims. There may be less inclination to speak in terms of victimization when ‘victims’ are seen as having reasonable and readily available opportunities to avoid the harm they have suffered. On the other hand, if the prevalence of safe-sex campaigns has not mitigated the responsibility and legal culpability that non-disclosers are seen as bearing, new ways of practicing safe sex may not either.

Moreover, drugs like PrEP must be taken on a daily basis and are recommended only for individuals at high risk of infection. The drugs are not necessarily appropriate for more general usage. Therefore, if they have the effect of undermining the possibility of claiming that one was victimized by a non-discloser, this would be true only for certain individuals or groups and not others. This observation is connected to another aspect of the findings that warrants further investigation: How does the social status of individuals figure in the construction of individuals as victims or in challenges to those constructions? I pointed out in my analysis how some of the discussion around how to view partners of non-disclosers blended into discussions of how to view women and included appeals to feminist rhetoric about women and their sexuality. I pointed out as well that the gay community seems less inclined to think in victim/villain terms given the educational and public health approach to AIDS prevention that the community has tended to favour. Data show that criminal charges are more likely to be laid when women, rather than gay men, are involved as partners. But the role of gender and sexuality, or race, class, age etc. was not really the focus of my analysis. There would certainly be value in exploring differences along these axes more systematically.

At a more theoretical level, the paper’s findings make a contribution to the field of victimology. The victimology literature has explored questions related to social movement framing of victims, how victims of crime see themselves and understand their victimhood, and how individuals seek, claim or project victim status vis-a-vis certain audiences (Dunn, 2008). The literature also addresses, as Loseke (2003) does, what features constitute a ‘good’ victim (Lamb, 1996) and how far the net of victimhood has been cast with the emergence since the 1960s of an ever-growing ideology of victimhood and victim industry (Best, 1997). However, there is little in the literature that looks in a detailed way at attempts to contest victim status. In that sense, this paper fills a gap and also raises questions about other areas where this process could be further explored. For example, one could look at debates about whether health care benefits should be extended to those who smoke and overeat, whether injured athletes (e.g. football players) can be seen as victims when the risks of concussion involved in certain sports are well known, or how much assistance should be provided to individuals who choose to live in flood plains or other areas prone to natural disasters.

With additional case studies of this nature, comparisons become possible as does the goal of establishing the more generic features of the victim contestation process. This is precisely the type of meta-analysis of case studies that Best (2015) has called for as a way of pushing social problems theory to a higher level of abstraction. The focus on individual case studies that has to this point characterized constructionist analyses of social problems has meant, in Best’s (2015:19) words, that ‘devising more generalized theories…rarely occurs in the sociology of social problems.’ Focusing analytically on victim contestation as a process and exploring how this process plays out in the context of different social problems debates could lead to a deeper understanding of the social problems game and how it is played.

The purpose of the above discussion was to understand the process whereby victim-status comes to be contested within a particular case study – the criminalization of HIV non-disclosure. As a result of the emphasis placed on the discourse – or ‘talk’ – in online settings, certain areas of importance and relevance were unable to be addressed here. One area in particular concerns a more in-depth legal analysis of victim consent within the context of this debate. A key argument for those who are against criminal sanctions within the discourse was that the ‘victim’ consented to unprotected sex and, therefore, took on the risk for exposure to STIs. Future research may benefit from further delving into this argument, drawing parallels, perhaps, with other similar cases and criminal statutes. Moreover, it would also be beneficial to carry out a more in-depth examination of the ‘blaming the victim’ rhetoric used within this context and understand its impact on mitigating the strength of the arguments made by those who oppose criminalization.

Footnotes

Acknowledgements

The author is grateful for the helpful and encouraging feedback provided by Dorothy Pawluch, Roy Cain, James Gillett and Randy Jackson on early drafts of this paper.

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