This article explores emotional harm in the context of the criminalization of HIV nondisclosure in Canada. With the exception of Matthew Weait in the United Kingdom, few scholars have examined what harm means in cases of HIV nondisclosure. We conceptualize the harm that follows nondisclosure as an affective response to the “HIV positive Other” and argue that law creates a legal norm about what harm is and feels like in cases of HIV nondisclosure when there is no clear consensus about how harm should be defined. Mobilizing the sociology of emotions literature, we contend that criminalizing HIV nondisclosure engages affective, moral, and criminal censure to regulate the behaviours of people living with HIV/AIDS (PLWH), thus reproducing HIV stigma and propagating emotional harm for PLWH. Canada’s response to HIV nondisclosure should instead involve a transformative justice approach that avoids the harm of criminalization and imprisonment while recognizing the emotional harm experienced by complainants.

This research note begins by situating some of the major areas of inquiry within social-science research on the criminalization of HIV/AIDS non-disclosure. The evolution of the use of this criminal justice measure in the attempt to regulate HIV/AIDS transmission illustrates what has been termed “criminalization creep,” whereby steadily increasing numbers of people are charged with increasingly severe crimes. We outline some of the key and precedent-setting cases in Canadian law in order to explore the problematic of criminalization and suggest avenues for future research on this subject.

The use of criminal-law powers to respond to people with HIV who place others at risk of HIV infection has emerged as a focal point of AIDS advocacy at global, national, and local levels. In the Canadian context, reform efforts that address the criminalization of HIV non-disclosure have been hampered by the absence of data on the contours, scale, and outcomes of criminalization. This article responds to that gap in knowledge with the first comprehensive analysis of the temporal trends, demographic patterns, and aggregate outcomes of Canadian criminal cases of HIV non-disclosure. The authors draw on insights into the role that rendering social phenomena in numerical terms plays for the governance of social life in order to make criminalization “visible” in ways that might contribute to activist responses. The article examines temporal trends, demographic patterns, and outcomes separately. In each instance, the pattern or trend identified is described, potential explanations for findings are offered, and an account is given of how the data have informed efforts to reform criminal law. Particular attention is paid to the following key findings: a sharp increase in criminal cases that began in 2004; the large proportion of recent criminal cases involving defendants who are heterosexual Black, African, and Caribbean men; and the high proportion of criminal cases resulting in conviction. The article closes with suggestions for future research.