by James Chalmers. Portland, OR: Hart Publishing 2008. 194pp. Paperback. $63.00/£30.00. ISBN: 9781841137261.
Reviewed by Michael J. Bosia, Department of Political Science, Saint Michael’s College. Email: mbosia [at] smcvt.edu.
With more than 25 years passing since the US Centers for Disease Control reported the mysterious syndrome known as AIDS and a quarter century since HIV was identified, we might assume that legal disputes over AIDS had been laid to rest long ago. The initial fears and prejudices were calmed, communities at risk mobilized for their own protection, and the medical and scientific establishment made significant progress hand in hand with those living with the disease. So does that mean James Chalmers’ LEGAL RESPONSES TO HIV AND AIDS is more history than engagement with a lively controversy in the law?
Quite the contrary. We find today a rekindling of efforts to criminalize HIV transmission and a renewal of debates over questions of medical confidentiality and informed consent in research, as well as a global challenge to international patent law centered on HIV/AIDS. It is in this context that a book such as this is important, addressing legal issues in the United Kingdom and the ethical questions at stake. Chalmers’ methodical and studied approach, however, does not go much beyond the law to consider the power and politics of HIV/AIDS and questions of marginalization that are present in every social aspect of this disease, instead leaving those concerns to lurk in the background of his analysis.
The criminalization of HIV transmission was of particular concern at the 2008 International AIDS Conference in Mexico City, with outrage coming from activists and policy makers led by South African Supreme Court Justice Edwin Cameron – who is HIV positive (Cameron, Burris, and Clayton 2008). This recent wave of criminalization has been shocking in its quick diffusion and its ignorance of both science and past contention over the same issue in the 1980s. Last year, a Texas jury found that the saliva of a person with HIV was a “deadly weapon,” sentencing the defendant to a 35-year term for spitting on a police officer despite the fact that there is no risk from casual contact, and in fact no “saliva” related case has been documented. A “model” criminalization law was developed at a 2004 conference in N’Djamena, Chad, and subsequent legislation across Sub Saharan Africa could criminalize mother-to-child transmission, even though access to drugs needed to prevent transmission is curtailed by the failure of these very same governments to increase access to treatment.
AIDS and HIV remain contentious in legal and ethical disputes outside criminalization, despite a public health approach to HIV/AIDS that emerged early in the disease, emphasizing community-based prevention strategies and the active engagement of researchers with communities touched by HIV. This [*493] includes confidentiality, anonymity, informed consent, and access to experimental treatments in appropriate settings. But as pharmaceutical companies and researchers relocate drug trials to sites in the developing world, global activists have divided over the methods of science and questions of medical ethics. Some activists remain committed to the core community-based protocols adopted in 1983 (the Denver Principles) calling for greater involvement in research design and implementation. Others embraced scientific method and good relationships with researchers (Bosia 2009). As well, increasing access to drugs in the developing world despite international protections for intellectual property rights known as TRIPs has generated significant global contention (Smith and Siplon 2006). Even the debates around the distribution of HIV contaminated blood and blood products seemed to be resolved long ago through criminal trials in some cases, indemnification and civil proceedings in others, and government inquests in a few more (Feldman and Bayer 1999; Bosia 2005). Yet, in Britain a thorough and independent inquiry was not convened until 2007, only recently completing its work (Archer 2009)
Chalmers engages some of these debates through a carefully constructed elaboration of the development of legal and ethical reasoning related to HIV and AIDS. He begins with HIV testing and informed consent, delving into the reasoning of governing boards, the medical establishment, and jurists. This includes a focus on the elaboration of testing protocols and court decisions where no precise law exists and, though largely unstated, when the government seemed unwilling to take action. He proceeds through one of the most contentious issues in the early response to the epidemic: when are medical personnel able to or required to break confidentiality to warn the partner of an HIV positive patient in their care? As well, he examines legal claims arising directly from government action, including questions of harm reduction, such as the ban on distribution of condoms and clean needles in prison settings, and the expulsion of undocumented immigrants with HIV.
Because these issues are not unique to Britain, or even unique to HIV and AIDS, Chalmers cites decisions and policies from Canada, Australia, New Zealand, and the US, and legal or ethical guidelines related to other transmissible diseases. Nevertheless, and despite a cover description claiming to offer a “comparative perspective,” the text is sharply focused on British debates and a methodology clearly governed by legal reasoning and not the fullest form of comparative law and politics that American political scientists might anticipate. Context, for example, is confined to the narrow analysis of legal precedent, argument, and the elaboration of medical ethics. Nowhere is relative institutional power considered as a variable in the law, with discussions that travel across the British legal, public health, and medical establishments but that provide little sense of which institutions are important or responsive, what their constituencies might be, and how integrated into lines of authority and decision-making they actually are. Even the various and diverse discussions of human rights and the law as related to HIV and AIDS are left calling for a much broader discussion of the [*494] European Court of Human Rights (ECHR) and the use of ECHR precedent in legal argument and case law in Britain and elsewhere.
In addition, the reader thirsts for the concerns about gender, sexuality, and race often at the heart of law and politics, for clearly HIV and AIDS entangle each of these dimensions, as well as a number of other questions related to marginalization strikingly evident in recent controversies over both criminalization and research ethics. Chalmers only nods in this direction, with, for example, an 1880s case where a husband was prosecuted for infecting his wife with gonorrhea, charges that were ultimately overturned. Though hinting at issues such as an exemption in the law for marital rape and the viability of the wife’s consent to intercourse, he does not delve into questions of gender, the structures of power in marital law and practice, or the ability of women to make claims at a time they were disenfranchised. Similar concerns about marginalization should have emerged again in the discussion of a right to exile for HIV positive undocumented immigrants. And only later, in his analysis of criminalizing HIV transmission, does Chalmers directly address sexuality: to dispute the argument that criminalization drives people with HIV into hiding by citing statistics showing gay men are much less likely to be prosecuted. Nowhere, does Chalmers mention the adoption of Section 28 of the Local Government Act of 1988, which prohibited authorities from conducting any activities that might promote homosexuality and was adopted almost coincident with the elaboration of the first national measures related to HIV and AIDS. This law revealed the biases, fears, and attitudes that permeated British institutions and gave birth to a new generation of more radical LGBT and HIV/AIDS activism in Britain.
So Chalmers is best at the beginning of LEGAL RESPONSES, focusing keenly on how courts and health care professionals considered medical and legal ethics as it relates to responsibilities within health care settings. By concentrating so unhesitatingly on legal and administrative texts, Chalmers provides the reader with an opportunity to explore the overt reasoning of the various institutional bodies and authorities involved in the elaboration of practices and guidelines related to the use of some of the most controversial tools in the anti-HIV kit, such as voluntary, routine or mandatory testing and the distinction between confidentiality and anonymity in a medical environment. These deliberations are not like parliamentary or ministerial debates, as they do not involve public accountability, heated partisan rhetoric, or interest articulation evident in the legislative setting, but they are controversies in the elaboration of AIDS and HIV related policy.
After following an intensely legalistic approach to HIV and AIDS in the law that ignores institutionalized bias in decision-making almost to assume that medical professionals, jurists, and health care administrators (and maybe even scholars) work in a world removed from such prejudices, the reader arrives at Chalmers’ discussion of the expulsion of undocumented immigrants and the criminalization of HIV transmission. It might even seem that the dispassionate analysis of legal and administrative texts [*495] and ethical reasoning serves as a calming precursor to these highly charged issues, as criminalization is much closer to Chalmers’ works elsewhere (Chalmers 2001, 2002, 2004). But even as a wave of criminalization grips governments around the world, Chalmers remains clinical as he engages the prosecution’s obvious evidentiary problems, such as questions of consent in sexual relationships. Turning as well to the debate over when a right to exile amounts to a right to treatment, these two sections combined are where the failure to engage theories of marginalization is the most compelling.
Lured into a world of law and legal reasoning, the reader is tempted to agree with Chalmers when he finds that expulsion is settled practice even if it is morally problematic, or that a narrowly construed crime of grievous bodily harm is legally reasonable and the public health concerns raised by the opponents of criminalization from around the world are unfounded. Chalmers does express concern for the disproportionate use of criminal charges against men of African descent in early prosecutions, but he quickly dismisses the argument of discriminatory effect in noting the eventual overrepresentation of heterosexual white men among the 14 convicted of transmission related offenses in Britain. Without an analysis of gender, race, and sexuality as it relates to the sweep of HIV/AIDS politics in Britain, Chalmers’ use of these statistics has no meaning.
These are the kinds of questions that, in contrast, concern Weait (2007) in his focus on criminalization and HIV within social and historical contexts, understanding the disease in the first instance as a public health issue. In the matter at hand, Weait explains the statistics on prosecutions by suggesting that the heterosexuality of most of the accused might relate to the gender of the victim, with an ethos of shared responsibility more common among gay men than mixed gender couples.
Overall, Chalmers is insightful when focusing on a kind of legal path dependence in the elaboration of AIDS related law, demonstrating how concepts even a century old continue to constrain reasoning as new circumstances arise, shaping contemporary outcomes that weigh human rights and medical ethics, individual as opposed to collective goods. But when his clinical approach moves beyond the exploration of legal and administrative texts to contest socially engaged scholarship on HIV/AIDS and the law as well as public health studies, he is on decidedly shaky ground. Useful as part of a broader discussion and debate, LEGAL RESPONSES nevertheless provides neither an important work on highly contentious debates about the application of law to HIV and AIDS around the world, nor an argument grounded in the kinds of scholarship that more often concern studies of law and politics.
Lord Archer, chairman, Independent Public Inquiry Report on NHS Supplied Contaminated Blood and Blood Products, www.archercbbp.com.
Bosia, Michael. 2009. “AIDS and Postcolonial Politics: Acting Up on Science and Immigration in France.” FRENCH POLITICS, CULTURE, AND SOCIETY 27:1, 69-90. [*496]
Bosia, Michael. 2005. “Assassin! AIDS and Neoliberal Reform in France.” NEW POLITICAL SCIENCE 27:3, 291-308.
Cameron, Edwin, Scott Burris and Michaela Clayton. 2008. “HIV is a virus, not a crime.” HIV/AIDS POLICY & LAW REVIEW 13:2-3, 64-68.
Chalmers, James. 2004. “Criminalisation of HIV Transmission: Can Doctors Be Liable for the Onward Transmission of HIV?” INTERNATIONAL JOURNAL OF STD & AIDS 15:12, 782-788.
Chalmers, James. 2002. “The Criminalisation of HIV Transmission.” JOURNAL OF MEDICAL ETHICS 28:3, 160-163.
Chalmers, James. 2001. “Sexually Transmitted Diseases and the Criminal Law.” JURIDICAL REVIEW 5: 259-278.
Feldman, Eric, and Ronald Bayer. 1999. BLOOD FEUDS: AIDS, BLOOD AND THE POLITICS OF MEDICAL DISASTER. New York: Oxford University Press.
Smith, Raymond A., and Patricia Siplon. 2006. DRUGS INTO BODIES: GLOBAL AIDS TREATMENT ACTIVISM. Westport, CT: Preager.
Weait, Matthew. 2007. INTIMACY AND RESPONSIBILITY: THE CRIMINALISATION OF HIV TRANSMISSION. New York: Routledge-Cavendish.
© Copyright 2009 by the author, Michael J. Bosia.