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

Carter, DJ

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

Carter, DJ

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Publication Type:: Journal Article
Citation:: Griffith Law Review, 2016, 25 (2), pp. 172 - 196
Issue Date:: 2016-04-02

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Field	Value	Language
dc.contributor.author	Carter, DJ https://orcid.org/0000-0002-8430-6351	en_US
dc.date.issued	2016-04-02	en_US
dc.identifier.citation	Griffith Law Review, 2016, 25 (2), pp. 172 - 196	en_US
dc.identifier.issn	1038-3441	en_US
dc.identifier.uri	http://hdl.handle.net/10453/57961
dc.description.abstract	© 2016 Griffith University. 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.	en_US
dc.relation.ispartof	Griffith Law Review	en_US
dc.relation.isbasedon	10.1080/10383441.2016.1238563	en_US
dc.title	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	en_US
dc.type	Journal Article
utslib.citation.volume	2	en_US
utslib.citation.volume	25	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
pubs.organisational-group	/University of Technology Sydney/Strength - CHSP - Health Services and Practice
pubs.organisational-group	/University of Technology Sydney/Strength - HJ - Health Justice
utslib.copyright.status	closed_access
pubs.issue	2	en_US
pubs.publication-status	Published	en_US
pubs.volume	25	en_US

Abstract:

© 2016 Griffith University. 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.

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http://hdl.handle.net/10453/57961