Daniel Del Gobbo

Finding Equality: A Creative Take on Feminist Judgment Projects and the Criminalization of HIV Non-Disclosure

Introduction

Finding equality: a creative take on feminist judgment projects and the criminalization of hiv non-disclosure. This article challenges conventional feminist judgment projects, advocating for new approaches to HIV non-disclosure law. It argues for abolition and creative legal reform.

Abstract

Feminist judgment projects have proliferated in recent years, with contributors in over twelve countries rewriting judgments to bring the relationship between law, gender, and equality to light. The requirements of feminist judgments vary between projects, but many of them require contributors to replicate the generic conventions of judgments and limit their reference to legal precedents and other materials available at the time of the original decision. This article reflects on the politics of feminist judgments, challenging the premises of the conventional methodology in contexts where the law cannot be redeemed through liberal legal methods. One such area is HIV non-disclosure. Canadian courts have repeatedly found that the criminal law has jurisdiction over a person’s failure to disclose their HIV-positive status in sexual relations. The article argues that the law in this area should not be rewritten using the conventional methodology because the law should be abolished. In contexts like this, feminists should have recourse to an expanded referential universe, including creative tools, strategies, and forms of literary and artistic expression to represent gender and sexuality differently. The article concludes by constructing a “found poem” from the words of R. v Aziga, a 2023 decision of the Ontario Court of Appeal, to suggest a more progressive path forward in HIV non-disclosure cases.

Review

"Finding Equality: A Creative Take on Feminist Judgment Projects and the Criminalization of HIV Non-Disclosure" presents a timely and incisive critique of the methodology employed in many feminist judgment projects. The article acknowledges the proliferation and value of these projects in illuminating the nexus between law, gender, and equality across numerous jurisdictions. However, it quickly pivots to challenge the conventional requirement for contributors to strictly replicate generic judgment conventions and limit references to materials available at the time of the original decision. The core argument emerges strongly: in contexts where the law is irredeemable through liberal legal methods, such as the criminalization of HIV non-disclosure, a more radical approach is warranted. A significant strength of this article lies in its courageous and original engagement with a contentious area of legal and social policy. By focusing on the criminalization of HIV non-disclosure in Canadian courts, the author effectively demonstrates a scenario where the law's very existence, rather than just its interpretation, is problematic. The bold assertion that this law "should be abolished" rather than merely rewritten using conventional methods is a powerful intervention. This sets the stage for the article's most innovative contribution: the call for an expanded referential universe that includes "creative tools, strategies, and forms of literary and artistic expression" to re-imagine gender and sexuality within the law. The practical demonstration of this approach through a "found poem" constructed from a recent court decision (R. v Aziga) offers a compelling and concrete illustration of this proposed methodological shift. While the article makes a compelling case for methodological innovation, a potential area for further discussion could involve the practical implementation and broader reception of such creative interventions within traditional legal scholarship and advocacy. How might "found poems" and other artistic expressions be integrated into legal reform efforts, and what challenges might arise in translating artistic representation into policy change or legal precedent? Nevertheless, this query does not diminish the profound impact of the article. It serves as an essential read for scholars engaged in feminist legal theory, critical legal studies, and public health law, urging them to reconsider the boundaries of legal critique and reform. By pushing the methodological envelope, this article offers a thought-provoking and ultimately inspiring vision for how feminist scholarship can more effectively challenge deeply entrenched legal injustices.

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