by Matthew Weait. New York: Routledge, 2007. 233pp. Hardback. $170.00. ISBN: 9781904385714. Paperback. $51.95. ISBN: 9781904385707. Reviewed by Joe Rollins, Department of Political Science, Queens College, CUNY. Email: joerollins [at] nyc.rr.com.
pp.598-600
In INTIMACY AND RESPONSIBILITY Matthew Weait sets out to problematize how the criminal law has been used against those who transmit HIV to their sexual partners and, along the way, provides insight into the ways that criminal law constructs responsible subjects. As HIV/AIDS has become medically manageable for those who have access to the necessary drugs, the sense of crisis has passed and scholarly attention in the area has waned. Weait’s book is a welcome reminder that the problem has not gone away and that AIDS remains an important subject for new theories and analysis. His thesis can be summarized succinctly: Criminalization of HIV transmission is unlikely to prevent onward transmission of the virus and may, instead, have pernicious side effects. Weait’s methodology is perhaps best described as discourse analysis; court transcripts, judicial opinions and statutory language serve as the most prominent data but media reports also make an occasional appearance. The cases examined in the book, fourteen altogether, come from England and Wales and all originated with criminal charges brought against individuals who were tried for or plead guilty to transmitting HIV to sexual partners. These cases constitute the entire universe of such prosecutions and a synopsis of each is provided at the end of Chapter 1.
Chapter 2 explores in detail the trial of Feston Konzani – a Malawian national convicted in 2004 of recklessly transmitting HIV to three female partners – and serves three purposes: to show the messy and complicated range of problems that law must address in matters involving human relationships, especially sexuality and HIV transmission; to show how passions, sentiments, behaviors, and expectations are translated into the language of the law; to set the stage for the themes examined in the remainder of the text. Those themes, reflected in subsequent chapter titles are “Harm, Causation and HIV Infection,” “Risk, Recklessness and HIV,” “Consent, Knowledge and Disclosure,” and “Responsibility, HIV Transmission and the Criminal Law.” A rich textual resource, the Konzani trial serves the author’s purpose admirably and whets the reader’s appetite for what follows. Weait relies on the case extensively to ground his arguments and where necessary draws reinforcement from the others. This approach is parsimonious and necessary because it makes otherwise complex arguments manageable for the reader unfamiliar with the law and case materials from England and Wales, but, to his credit, it also makes the reader wish for a more thorough treatment of the other cases because his take on Konzani is so compelling. [*599]
Chapter 3 frames the discussion of harm and causation by explaining the limitations of phylogenetic analysis – the scientific technique by which viral samples from person A might be linked to the infection of person B. Despite the desire of legal actors to find certainty in science, Weait shows that scientific certainty in such cases is elusive at best. Coupling this discussion with an explanation of the legal concept of harm leads Weait to investigate critically the notion of the autonomous legal subject who is entitled to bodily integrity, as well as the idea that law should intervene when that integrity is compromised. As he concludes, these concepts, despite political value and intellectual appeal, “lack descriptive truth” and result in theories and justifications that rest “on an inadequate foundation” (p.108).
As Weait points out, Chapter 4 is the most theoretically dense part of the book. It begins with the premise that modernity ushered in a period during which liberty was predicated upon security and security required a particular construction of the body as autonomous, bounded, and inviolable. An important aspect of this epistemological tradition has been the rise of the “risk society.” Whereas in pre-modern societies risk was seen as inevitable and beyond human control, modernity brought with it the related beliefs that risk could be managed by experts and nature could be mastered, but that the “extravagant promises of modernity – of health, wealth, and security – are ones that not only can be delivered, but ones that, paradoxically but inevitably, modernity has rendered undeliverable” (p.119); hence, the rise of post-modernity marked by skepticism and anxiety. This theoretical exegesis lays the foundation for the argument developed throughout the remainder of the chapter: “HIV positive people represent the paradigm Other of risk society, and recklessness the paradigm fault” (p.197). Here we see how the citizen/subject was rendered possible through enlightenment era philosophies of the state (e.g., Mill), and possessed a “bounded body” that is white, male, heterosexual and, at all times, a sexual agent. Sexual objects – i.e., women, people of color, gay men – possess open bodies that are liminal, hybrid and therefore threatening; the HIV positive body exemplifies this most clearly, threatening not only the corporeal body but also the body politic.
Chapter 5 considers the notion of consent and its relationship to knowledge and disclosure. Drawing on Foucault’s insights about confession what Weait shows most forcefully here, although he states it more cautiously, is law’s role in perpetuating the fantasy that heterosexual sex is clean, safe, and that any risks associated with it (e.g., pregnancy) do not fall on white, heterosexual men. Perhaps the most potent argument here, and one well supported by his evidence, is that judicial rhetoric in the cases examined makes general knowledge of HIV transmission risk unthinkable; the HIV positive person is responsible for the well-being of his or her sexual partners who, in turn, have no legal obligation to attend their own safety.
The final chapter illustrates best one of the things that is most satisfying about Weait’s book: It is an excellent example of lucid prose and convincing analyses; each chapter begins with a clear [*600] foreshadowing of the arguments to come and concludes with a summary. Theoretical frameworks are set up sufficiently without unnecessary embellishment, arguments are drawn persuasively from the evidence provided and, at the end of it all, Weait has provided a very useful, thoughtful and convincing treatment of a subject that merits further scholarly attention. The final chapter elegantly summarizes the whole and reiterates the author’s main themes.
INTIMACY AND RESPONSIBILITY makes a valuable contribution to sociolegal scholarship in general but will be of particular interest to those working on public health, the body, gender and sexuality. Weait is at his best when setting up his arguments and presenting evidence. The conclusions he draws are insightful, interesting and underscore what has long been common knowledge among public health policymakers, the gay community, and people living with HIV/AIDS: Safer-sex practices are a must and getting tested is the key to longevity. Punitive policies only deter people from getting tested and seeking medical treatment. Weait’s most illuminating insights show how legal language perpetuates the fantastical scripts through which sexual acts become sexuality, i.e., how sex is infused with meaning in Western culture. The conceptual tools deployed here – causation, risk, responsibility, knowledge, consent – help instantiate a binary system of sexuality wherein bright lines are drawn between safety and risk, male and female, hetero- and homo-, white and non-white, citizen and immigrant, despite the inaccuracy and damaging potential inherent in such stark delineations. It would have been interesting to see Weait delve more deeply into this Foucaultian power-knowledge nexus because it is so clearly an animating force behind the phenomenon he has chosen to analyze. But that was not his project, and it seems churlish to quibble with a book that is otherwise so elegant and thoughtful. The observation might be, instead, best viewed as evidence of an American reader’s limited grasp of the British gift for understatement.
© Copyright 2008 by the author, Joe Rollins.
