Deception and Disclosure: A Socio-Legal Analysis of HIV Transmission Offences and Mobile Dating Applications

Giles, Cameron Alexander Richard (2021) Deception and Disclosure: A Socio-Legal Analysis of HIV Transmission Offences and Mobile Dating Applications. Doctoral thesis, Northumbria University.

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Abstract

In England and Wales, the criminalisation of disease transmission has principally arisen in cases involving HIV transmission. This includes Rowe [2018] where intentional transmission was established for the first time, in part through digital evidence. Criminal law scholarship on transmission offences has acknowledged that issues of HIV (non-)disclosure can be contentious, presenting particular challenges stemming from various disclosure expectations and understandings of HIV transmission risk which exist in different contexts/communities.

Such issues have been compounded by the proliferation of HIV disclosure features on mobile “dating” applications targeted at men who have sex with men in recent years. How these new technologies influence and supplant existing expectations, knowledge of risk, and distributions of responsibility is an issue which has yet to be considered in empirical socio-legal literature. Utilising a visual, scenario-driven, methodology, this project analyses the responses of 102 application users who use these apps to connect with men and demonstrates that these features are understood in several complex and often contradictory ways.

Firstly, this thesis illustrates how participants’ conceptualisations of risk and safety might challenge existing approaches to “sexual responsibility” and the uneven distribution of responsibility for HIV prevention. Secondly, it highlights how contextual disclosure expectations and the perceived “right to know” have the potential to influence legal debates on “conditional consent”. Thirdly, it demonstrates how discourses on responsibility and agency, as well as participants’ often erroneous understanding of the law, are shaped by these disclosure features.

This thesis, therefore, makes a significant and original contribution to criminal law scholarship. It emphasises the importance of proper appraisal of contextual norms and knowledge in transmission cases and concludes by summarising that whilst applications offer new ways to understand culpability, responsibility and obligation in transmission cases, this can only be achieved justly through a detailed examination of social context in which these are used, which is not achieved if applications are presented as straightforward and unnuanced at trial.

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