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 2016, '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', Griffith Law Review, vol. 25, no. 2, pp. 172-196

Posted: 27 Apr 2020

See all articles by David J. Carter

David J. Carter

University of Technology Sydney, Faculty of Law

Date Written: April 2, 2016

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.

Suggested Citation

Carter, David J., 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 (April 2, 2016). Carter, DJ 2016, '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', Griffith Law Review, vol. 25, no. 2, pp. 172-196, Available at SSRN: https://ssrn.com/abstract=3564370

David J. Carter (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
48
PlumX Metrics