The HIV/AIDS epidemic caught welfare states unprepared. The initially lethal disease laid bare epidemiological complacency, undermined assumptions of being able to control disease and revealed the limits for tolerance and care. Political responses to the epidemic included educational and informational efforts as well as more coercive measures. One of the most criticized practices to counter the epidemic is the so called criminalization of HIV, which means that non-disclosure, exposure and transmission can be prosecuted as criminal felonies. Criminalization is criticized for undermining preventive work and increasing stigmatization. Studies have also shown that women and black men with female partners run a higher risk of prosecution, indicating that racialized and patriarchal power relations are at play. So how come that welfare states such as Sweden and the US continue to convict individuals based on their HIV status?
Reading HIV/AIDS as a challenge to welfare states’ claims to protect their citizens this paper aims to deepen the understanding of the political dimensions of criminalization by probing the links between legal responses to HIV and the legitimacy of welfare states. While several previous studies have detailed the constructions of those accused, this paper focus on the constitution of the subjects eligible for protection and the power relations produced in this process. Who is worthy of protection and under what circumstances? What measures are undertaken to make the “enemy” visible, and for the benefit of whom is this visibility produced?
Based on empirical material such as media reports and court proceedings, this study compare Sweden and the US, the two states in the world where people living with HIV run the highest risk of being prosecuted because of their HIV status. Preliminary results indicate that while the character of prosecuted cases and legal practices differ between the countries, the legitimacy of criminalization rests on the same construction of these legal practices being a response to a public demand for protection.