I am currently at work on two book projects. The first, "Punishing Disease," examines how public health and legal authorities control and punish HIV-positive people in the United States. That book is forthcoming with University of California Press. The second project, "The War on Sex," is a collection of essays co-edited with David Halperin that examines how sex and erotic life are controlled and punished. That book is fothcoming with Duke University Press. Below, I describe my current streams of research in greater depth.
Punishing Disease: HIV and the Criminalization of Sickness
When media outlets caught wind that a doctor treating Ebola patients in Africa had returned home to Brooklyn with the disease last year, his every move became the subject of intense public scrutiny. Fed a constant stream of sensational news stories, Americans – especially New Yorkers – became increasingly furious. "He took an Uber to go bowling? Unbelievable!" The news came on the heels of reports out of Texas that a Liberian man, Thomas Duncan, had become the first person diagnosed with Ebola in the United States. In his home country, Liberian authorities were angry that Duncan lied to officials when he denied any contact with Ebola patients. Officials publicly declared that he would be prosecuted if he ever set foot in his home country again.
Duncan would die before Liberia would get its chance to put him behind bars. His story, however, lives on as the latest example of punitive attitudes towards the sick. Indeed, the tension between individual liberty and public health has a long history, stretching as far back as Typhoid Mary. Blaming people for their disease, and for putting others at risk of catching it, is an age-old response. But while blame has always haunted sickness, criminal punishment has not been widely used against disease.
That is, not until HIV. Emerging at the same time that the American carceral state expanded by leaps and bounds in the 1980s, the HIV epidemic became entangled in the impulse to use prisons and handcuffs as the solution to social problems. Since the late 1980s, more than thirty states have enacted criminal laws specifically targeting people living with HIV. Most make it a crime for HIV-positive people to have sex without first disclosing their HIV-status, even if the sexual practices alleged could not plausibly transmit the disease. Thousands have been imprisoned.
Punishing Disease explains how HIV paved the way to the criminalization of sickness. The first section of the book examines how public health policy and practice is contributing to punishing disease. I analyze how a series of CDC policy shifts in the early 2000s gave birth to a new era of HIV prevention in which HIV-positive people became the target of public health interventions. While most people think HIV prevention is synonymous with promoting condom use to HIV-negative people, that ship has long sailed in public health practice. Through an analysis of positive prevention HIV prevention campaigns, I show how notions of individual responsibility embedded in these campaigns complement efforts to criminalize HIV-positive people.
Local health departments have taken up this mandate by developing novel strategies for policing HIV-positive people. Surveillance tools developed to keep track of the number and distribution of new HIV infections are now being used to catch people suspected of breaking the law. In some cases, the public health department has become an arm of the police.
The second section of Punishing Disease goes inside the courtroom to understand how lawyers and judges apply HIV-specific criminal laws. Rather than drawing on the latest science to interpret the risk of transmission posed in a given case, they opt for dramatics by painting HIV as a deadly weapon and HIV-positive people as murderers – long after new treatments emerged in the mid-1990s that transformed HIV into a manageable chronic illness.
Studies now demonstrate that it is nearly impossible for people living with HIV who are on treatment to transmit the virus sexually. Despite these radical advances in HIV treatment and science, criminal laws continue to punish a much broader array of defendants than most people understand.
Far from the malicious infector imagined by some people, Punishing Disease reveals that many cases involve low or no risk sexual practices – or what the CDC would call “safe sex.” In Michigan, an erotic dancer was convicted in 2009 for allegedly allowing her client’s nose to penetrate her vagina. In other states, even nonsexual exposures can be criminalized. In 2010, a man who attempted suicide was convicted in Tennessee after biting a medical attendant when he woke up in the hospital, alarmed and confused. Neither case involved a plausible risk of transmission. But safety from HIV risk does not equate safety from the law.
Not surprisingly, the defendants convicted under HIV-specific laws are not a random sample of people living with HIV. Heterosexual black men, in particular, are much more often punished under these statutes. On the other hand, gay men – black or white – are less likely to be convicted. Why would this be? The answer lies in how charges are conventionally brought in these cases. They require potential complaining witnesses to pick up the phone and call the cops. As it turns out, not everyone is willing to bring the police into their sex lives. This unique feature results in clear disparities, adding to the overcriminalization of black men that is devastating communities of color across the country.
Critics of HIV-specific laws have mounted advocacy campaigns against their use, arguing that legislatures should modernize them in the wake of scientific advances. Legislatures have taken up these calls, in some cases, with unexpected consequences. While Iowa did overhaul its criminal law to reduce penalties in all but most the most egregious of cases, the state legislature also added a laundry list of diseases now up for criminal sanction – including diseases as disparate as hepatitis and meningitis. As such, HIV appears to have opened the door towards the criminalization of sickness.
Punishing Disease explains how this happened and with what consequences. Now that the door to criminalizing sickness is open, what other ailments will follow? By exploring how HIV has paved the way to the criminalization of sickness, Punishing Disease sheds new light on the intersection between institutions of medicine, public health, and the law.
Punishing Sex: Sex Offenders and the Missing Punitive Turn in Sexuality Studies
Despite Gayle Rubin’s (1984) call for a new analysis of sex three decades ago, social scientists remain squeamish when it comes to studying sex. When scholars have attended to the social regulation of sex, they have generally focused on LGBT identities, communities, and politics. Of course, the attention to the construction of LGBT communities, cultures, and civil rights movements is warranted; their rise represents a seismic social change. The Supreme Court of the United States first legally recognized this shift in its landmark decision in Lawrence v. Texas (2003), which many observers interpreted as overturning state sodomy laws that criminalized non-procreative sex. In the late Justice Antonin Scalia’s now-infamous Lawrence dissent, he warned that the Court’s decision would pave the way for same-sex marriage – a comment that has proven impressively prescient as same-sex marriage is now the law of the land (see Obergefell v. Hodges). While incomplete, the resignification of the homosexual from pedophile to picket fences is, indeed, a dramatic social transformation.
But while this powerful progressive narrative is appealing, it does not provide a complete picture of how the state regulates sexuality – or even the legacies of Obergefell or Lawrence. At precisely the same time that activists were securing marriage rights for same-sex couples, courts and “tough on crime” legislatures nationwide were devising new ways to punish sex. As it turns out, anti-sodomy laws supposedly struck down by Lawrence are, in fact, still on the books; police continue to invoke them against the very same kinds of people they did before Lawrence – namely women sex workers and men caught having sex with other men in public venues. While AIDS activists successfully resisted punitive control measures such as quarantine and extreme proposals such as tattooing those infected with HIV, they were unable in many states to prevent legislatures from enacting new criminal laws that made it a crime for HIV-infected individuals to have sex without disclosing their status. In more recent years, a concern over sex trafficking has sparked a resurgence in punitive policies aimed at controlling sexual labor.
But the most glaring expansion of the carceral state aimed at regulating sex has been the invention of publicly accessible sex offender registries. Borne out of the mid-century sex crime panic, registries were first concocted in California in 1947, but were not widely adopted until the 1990s. Recent estimates suggest that more than 750,000 Americans are registered sex offenders. Their ranks include individuals convicted of a broad range of offenses, from statutory rape to indecent exposure to sexual assault; many are first time offenders locked up for nonviolent offenses. Yet, despite the massive scale of these registries, the social science literature examining their application is vastly underdeveloped. I contribute to our understanding of sex offender registries by grappling with two questions.
First, what is the relationship between the larger carceral state and sex offender registries? At first glance, the recent spike in the number of Americans registered as sex offenders would seem to reflect a more general trend towards using handcuffs and prisons as a response to social problems. Indeed, a wealth of scholarship has demonstrated that incarceration rates spiraled out of control beginning in the 1980s. However, my analysis reveals that correctional supervision rates have declined in recent years nationally at the same time that rates of sex offender registration have increased substantially.
Second, who is being caught up in the net of sex offender registration? While Judith Levine (forthcoming) has noted that sex offenders are perceived to be white, middle-aged men, few empirical studies have analyzed whether sex offenders are more or less likely to be white than the general population. In this analysis, I compare United States Census demographic data against a unique cross-sectional dataset of currently registered sex offenders in 49 states to examine racial disparities in sex offender registration rates. As I show, Black men are disproportionately impacted by these policies and my findings suggest that nearly 1% of all Black men in the United States are registered sex offenders.
Finally, I conclude by considering what it means that the state has developed a free-moving arm of the carceral state that is specifically tailored to punishing sex. I argue that sex offender registries may represent a new approach to what Jonathan Simon (2007) terms “governing through crime.” At the same time that the war on drugs was losing its cultural legitimacy, legislatures devised sex offender registries that allowed the carceral state to expand even as social movements called punitive drug laws into question. Most troubling for LGBT activists and scholars, sex offender registries appear to be motivated by the inaccurate perception that sexual offenders are more likely to reoffend and thus require special control – a view that echoes the LGBT movement’s notion that sexuality is an innate characteristic. By analyzing the relationship between the carceral state, sexuality, and race, these findings suggest new directions for sexuality scholarship and activism that considers how punishment shapes sexual politics in America.