Ashford explains that -
This article seeks to revisit the law in relation to the sexual phenomenon of barebacking. Drawing upon queer theory, the article seeks to evaluate critically the development of the criminal law in relation to the practice of ‘unsafe’ sex by men with other men, known as barebacking, along with the broader casting of the judiciary as sexual custos mores. It will argue that the present heteronormative legal and cultural framework largely reflects a focus upon the 'good gay', de-sexed and constructed within a rights discourse, in contrast to Stychin's 'bad queer', sexual and defiant of a narrow heteronormative rights agenda, and embracing 'unsafe' and 'deviant' sexual practices.He concludes that -
This article seeks to move the analysis of the criminal law on from the doctrinal debates that have dominated thus far, and onto a more theoretical exposition of the criminal law regarding barebacking as erotic play.
If it is accepted that paraphilias, such as the fetishisation of HIV transmission, are 'ineradicable once established', then we must accept that legal control will not prevent this behaviour from taking place. The law can therefore only serve to punish these acts and that is what it does in relation to certain acts of sadomasochism and barebacking. The violent pornography law in the form of the Criminal Justice & Immigration Act 2008 has a similar 'cloak' of preventing certain forms of sexual behaviour. If we look beneath this cloak, we discover a law that is just as wrapped in heteronormative power as Devlin’s 1959 Maccabean lecture was.
Brown, and the more recent HIV transmission case law reveal questions of jurisprudence, philosophy and the 'appropriate role of law in society, even of the nature of society itself'. They reveal a judicial view of society that is rooted in conservative and heteronormative values. Yet, the judiciary are not alone in taking this construction of society. The dearth of literature advancing a pro-barebacking queer perspective on the law is palpable. Those who do speak out, like Erik Remes, have received death threats, or are accused of ‘giving ammunition’ to homophobes, as in the case of Tim Dean.
Susan Edwards, writing on Brown commented that ‘it is an intellectually barren advocate of civil liberties who argues that infliction of harm in auto-erotic arousal of the proportions which constitute ABH should not be a crime. The law is about protecting from harm, the weak and the vulnerable, not for protecting the excesses of the cruel and violent, to satisfy their libidos’. Whilst it is possible that Edwards might take a different approach from Brown in the changed political and social context of today; it is perhaps also reasonable to assume that Edwards’s analysis would extend to barebacking cases.
Far from being ‘intellectually barren’, the queer analysis advanced in the course of this article seeks to move beyond the narrow heteronormative, liberal understanding of rights that has thus far informed the law in this area. One’s libido should not need defending from the State when individuals have come together in their own construction of consent.
In a 2006 article, Michael Shernoff noted that ‘it is clinically naïve and inappropriate for any professional to approach this issue with rigid ideas about what people should be doing and why’, whilst Burris et al., having reviewed some US empirical data and theoretical arguments, concluded: ‘The criminalization of HIV has been a strange, pointless exercise in the long fight to control HIV’.
The evolutionary approach of law as a responder to social change, advocated by Lord Mustill, may yet see the emergence of a new approach to barebacking and HIV transmission within criminal law. However, Judge LJ’s statement in Dica that 'in our judgment, interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament' suggests that Brown might be decided differently today but greater focus by mainstream Westminster politicians is not likely to result in a radical shift either in favour of BDSM or barebacking.
Moreover, the abject failure of the BDSM community to advance the law relating to sadomasochism, despite long-standing radical assertions of identity within the academic community and beyond, does not suggest much cause for optimism for any pro-barebacking community. Nonetheless, queer legal theory offers new arguments to re-evaluate this area of criminal law and the debate will no doubt continue.