HIV transmission, public health detention and the recalcitrant subject of discipline: Kuoth, Lam v R and the co-constitution of public health and criminal law

ABSTRACT

The attempt to govern HIV through technologies of coercion, compulsion or detention has long raised significant questions for law, public health and state practice generally. In this vein, many public health writers have challenged the continued availability of criminal-legal sanction in relation to particular HIV-related events, namely where potential or actual transmission might result in constraint or deprivation of liberty by virtue of criminal punishment. Within public health practice, however, a variety of communicable disease approaches utilise the same technologies of constraint or deprivation of liberty, including administrative detention. As yet, the structural and operational connections between criminal legal and public health practices have not been adequately addressed. Here I read the recent case of Kuoth, Lam v R [2010] VSCA 103 (21 April 2010) as an event that disturbs the dominant frame of separation and difference that we have applied to the relationship between public health and criminal law. To do so, I draw principally upon the work of Foucault and his recent interpreters, Ben Golder and Peter Fitzpatrick. As I shall argue, despite a disjunction between these two powers of modernity, the operation of criminal law and public health are not at odds, but are rather mutually co-constitutive.

KEYWORDS:

• HIV
• public health law
• criminalisation
• communicabledisease control

Acknowledgements

This research was undertaken as part of an LLM (Research) at the University of New South Wales. The author would like to particularly thank Dr Ben Golder and Dr Tyrone Kirchengast for their supervision of that research. Thanks are due also to Dr Anthea Vogl, Dr Mark de Vitis as well as the anonymous reviewers of this article for their generous feedback.

ORCiD

David J. Carter http://orcid.org/0000-0002-8430-6351

Notes

1 Crimes Act 1958 (Vic) s 122.

2 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008).

3 Kuoth, Lam v R [2010] VSCA 103 (21 April 2010) (‘Kuoth’) per Maxwell P at [2]–[3].

4 There was criticism of the sentence by some, with Lacava J reported to have similarly believed initially that the sentence was ‘too lenient but after reading [Department of Human Services] reports, he agreed continued treatment was the best option for Kuoth’ Medew (2007).

5 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) per Maxwell P (with whom Buchanan JA agreed) at [18].

6 Kuoth [2010] VSCA 103 (21 April 2010) per Maxwell P at [18] with whom Buchanan JA agreed. Note how the Court here considers the essence of imprisonment as the ‘deprivation of liberty’. Imprisonment, as Foucault points out, has never been restricted to simply the deprivation of liberty, but instead always functions with additional elements which extend beyond deprivation of bodily liberty alone. See also Dilts (2014), pp 42–43 on disenfranchisement and its similar logic to deprivation of liberty.

7 Kuoth [2010] VSCA 103 (21 April 2010) at [18].

8 Chong et al (2013), p 379.

9 Reeders (2008), p 8.

10 Race (2012), p 327.

11 See specifically Golder and Fitzpatrick (2009).

12 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008).

13 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [6]–[8].

14 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [6]–[8].

15 At the time of the Kuoth trial, the relevant State Government body, the Victorian Department of Health and Human Services – and the Chief Health Officer of Victoria – had been reviewing its ‘management’ of those living with HIV. This was initiated after the former Chief Health Officer, Dr Robert Hall, had been publically criticised for his handling of the case of Robert Neal, a man living with HIV who had been found guilty of 26 counts of various offences, including that of causing another to be infected with HIV and over a dozen counts of attempt to cause another to be infected with HIV. Dr Hall had decided not to act on advice to issue a public health order to isolate or quarantine Neal. Infamously, after a refusal to hand over Neal's medical record to police, a warrant was issued for a raid of the Department, at which Neal's records were seized, together with the records of another 17 of the 30–40 who were being managed by the department. This controversy over the state's role in policing the sexual behaviour of persons with HIV was the context in which Kuoth's case came before the County Court of Victoria.

16 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [10]–[15].

17 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [10]–[15].

18 R v Kuoth (Unreported, County Court of Victoria, Lacava J, 11 August 2008) at [10]–[15].

19 Crimes Act 1958 (Vic) s 23.

20 Crimes Act 1958 (Vic) s 15, serious injury means: (a) an injury (including the cumulative effect of more than one injury) that: (i) endangers life; or (ii) is substantial and protracted. This has been adopted to include HIV in Victoria Neal v R (2011) 32 VR 454; see also in the UK R v Dica (2004) QB 1257.

21 Medew (2007).

22 Chong, Fellows and Richards (2013), p 379.

23 (2004) 219 CLR 562; see McSherry (2005), p 94; Keyzer and Mcsherry (2015).

24 (2004) 210 CLR 50.

25 Richards (2015), pp 105, 110; Porter (1994).

26 Hamilton (1978), p 14; Maglen (2006), p 317; Brown (2009), p 1.

27 Reeders (2008), p 8.

28 (1815), 4 M & S 72, 105 ER 76 (KB), see Reynolds (2011), p 283.

29 Bibbings and Nicolson (2013), p 208.

30 Crimes Amendment (Repeal of Section 19A) 2015 (Vic).

31 Crimes Act 1958 (Vic) s 19(a)(2).

32 Crimes Act 1900 (NSW) s 4.

33 Cameron et al (2008), p 7; Lehman et al (2014), p 997; United States Department of Justice, Civil Rights Division, ‘Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors’ https://www.aids.gov/federal-resources/national-hiv-aids-strategy/doj-hiv-criminal-law-best-practices-guide.pdf

34 Gostin (2008).

35 Gostin (2000), p 2837.

36 Brown and Duncan (2002), p 365.

37 For an overview of various powers and sources of law see Cameron (2011); and see generally Reynolds (2011), p 283.

38 Reynolds (2011), p 192.

39 Reynolds (2011), p 308.

40 Public Health Act 2010 (NSW) s11.

41 Public Health Act 2010 (NSW) s97.

42 Public Health Act 2010 (NSW) s54–55.

43 See for example Public Health Act 1997 (ACT) s102(A)(2), 2010 (NSW) s54–55; Notifiable Diseases Act (NT) s16; Public Health Act 2005 (QLD) s72–73.

44 Outside Western Australia, the Northern Territory and Victoria, Cameron (date unknown).

45 Reynolds (2011), p 292.

46 The use and form of such orders across Australian jurisdictions is the subject of a separate research project being undertaken by the author.

47 Cliff and Smallman-Raynor (2013), p 65.

48 Golder and Fitzpatrick (2009), p 61.

49 See, for example, Rush, Tomsen and Klein discussed below.

50 Reynolds (2011), p 306.

51 Reynolds (2011), p 306.

52 Reynolds (2011), p 306.

53 Weait (2007), p 233.

54 Weait (2007), p 233.

55 Burris et al (2007), pp 467, 467.

56 Weait (2007), p 12.

57 Weait (2007), p 12.

58 Weait (2007), p 12.

59 Weait (2007), p 200.

60 Weait (2007), p 200.

61 Cameron and Rule (2009a).

62 Cameron and Rule (2009b), pp 18, 20.

63 Cameron and Rule (2009b), p 20.

64 Cameron and Rule (2009b), p 20.

65 Das too notes how epidemic control strategies employ ‘ … an equivocal logic … [where] personhood [is] constituted in the borderline between … two distinct and contrary rationalities … ’ where in that analysis a person living with HIV is invested as a subject of the state even as the state denies them full subjecthood, see Das (2013), p 24.

66 Weait (2007), p 110.

67 Cameron and Rule (2009b), p 20.

68 Cameron and Rule (2009b), p 20.

69 Cameron and Rule (2009b), p 18, emphasis my own.

70 Weait (2007), p 21.

71 Weait (2007), p 200.

72 See especially Hunt and Wickham (1994).

73 Golder and Fitzpatrick (2009), p 13.

74 Golder and Fitzpatrick (2009), p 13.

75 Golder and Fitzpatrick (2009), pp 16–17.

76 Golder and Fitzpatrick (2009), p 13.

77 Foucault (2012), p 89.

78 Foucault (2003), p 38.

79 Foucault (2003), p 38.

80 Golder and Fitzpatrick (2009), p 22.

81 Golder and Fitzpatrick (2009), p 22.

82 Golder and Fitzpatrick (2009), p 22.

83 Golder and Fitzpatrick (2009), p 23.

84 Golder and Fitzpatrick (2009), p 22.

85 Golder and Fitzpatrick (2009), p 13.

86 Golder and Fitzpatrick (2009), p 72.

87 Golder and Fitzpatrick (2009), p 15.

88 Weait (2000), p 200.

89 Golder and Fitzpatrick (2009), p 53.

90 Golder (2013), p 40.

91 Golder (2012), p 91.

92 Golder (2012), p 102.

93 Weait (2007), p 18.

94 Golder and Fitzpatrick (2009), p 13.

95 Golder and Fitzpatrick (2009), p 79.

96 Foucault (2003), p 25.

97 Golder and Fitzpatrick (2009), p 63.

98 Golder and Fitzpatrick (2009), p 13.

99 Golder and Fitzpatrick exegete another instance of this process in the case of R v Board of Visitors of HM Prison, the Maze ex parte Hone (1988) 1 AC 379, where the law is used to supervise disciplinary proceedings in UK gaols, see Golder and Fitzpatrick (2009), p 63.

100 Crimes (High Risk Offenders) Act 2006 (NSW), s 17(4)(d). See McSherry (2014), p 782.

101 Golder and Fitzpatrick (2009), p 64.

102 [2006] NSWCCA 354 (16 November 2006).

103 Kanengele-Yondjo v R [2006] NSWCCA 354 (16 November 2006) at [16].

104 Kuoth, Lam v R (2010) VSCA 103 (21 April 2010) at [18], emphasis added.

105 Klein (2009), pp 251, 266.

106 Tomsen (2009), pp 92, 97.

107 Tomsen (2009), pp 92, 97.

108 Tomsen (2009), pp 92, 97.

109 Klein (2009), p 269.

110 Klein (2009), p 269.

111 Weait (2007), pp 87–105.

112 For example, public health physicians testified at the trial of Kanengele-Yondjo, Kanengele-Yondjo v R (2006) NSWCCA 354 (16 November 2006).

113 Rush (2009), pp 74, 81.

114 Rush (2009), p 75.

115 Golder and Fitzpatrick (2009), p 62.

116 Golder and Fitzpatrick (2009), p 67.

117 Golder and Fitzpatrick (2009), p 70.

118 Reeders (2008), p 8.

119 Reeders (2008), p 8.

120 Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (2008).

121 Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (2008), p 4.

122 Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (2008), p 6, emphasis in original.

123 Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (2008), p 6.

124 Blood Borne Virus and Sexually Transmissible Infections Sub-Committee (BBVSS) of the Australian Population Health Development Principal Committee (APHDPC) (2008), p 7.

125 NSW Ministry of Health, NSW Government (2009), p 1.

126 Reeders (2008), p 8.

127 Rush (2009), p 75.

128 Golder and Fitzpatrick (2009), p 70.

129 Golder and Fitzpatrick (2009), p 64.

130 Golder and Fitzpatrick (2009), p 67.

131 Golder and Fitzpatrick (2009), p 68.

132 Golder and Fitzpatrick (2009), p 64.

133 Golder and Fitzpatrick (2009), p 67.

134 Golder and Fitzpatrick (2009), p 67.

135 The Kirby Institute (2015), p 11.

136 Foucault (1980), p 138; see also Golder and Fitzpatrick (2009), p 69.

137 Golder and Fitzpatrick (2009), p 69.

138 Golder and Fitzpatrick (2009), p 68.

139 Race, above n 10.