Barebacking and the ‘Cult of Violence’: Queering the Criminal Law

1. Barebacking and the ‘Cult of
Violence’: Queering the Criminal
Law
Chris Ashford*
Abstract 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 bare-
backing, 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 em-
bracing ‘unsafe’ and ‘deviant’ sexual practices.
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 theoret-
ical exposition of the criminal law regarding barebacking as erotic play.
Keywords HIV; Barebacking; BDSM; Violence; Sex
Recent years have marked a shift in the public perception of sexuality as
legislative developments have driven a repositioning of sexuality in the
national consciousness. An equal age of consent,1 the repeal of s. 282 and
new protective legislation designed to prevent homophobic hate
speech,3 the discriminatory provision of goods and services,4 employ-
ment protection5 and partnership rights6 have all contributed to move
the law beyond the post-Wolfenden socio-legal settlement7.
Yet, beyond this political and socio-legal recasting of the ‘homo-
sexual’, other forms of sexuality have fallen into the category of the
socially, politically, legally and crucially, morally unacceptable. Sex work
* Principal Lecturer in Law, Department of Law, University of Sunderland; e-mail:
chris.ashford@sunderland.ac.uk.
1 Sexual Offences (Amendment) Act 2000.
2 Section 28 of the Local Government Act 1988, inserting s. 2A, Prohibition on
promoting homosexuality by teaching or by publishing material, into the Local
Government Act 1986. Section 28 was repealed by the Local Government Act
2003.
3 Criminal Justice and Immigration Act 2008.
4 Equality Act 2006.
5 Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003 No. 1661).
6 Civil Partnership Act 2004.
7 See more generally, Home Office, Report of the Committee on Homosexual Offences and
Prostitution (HMSO: London, 1957). The Wolfenden Report recommended the
legalisation of ‘homosexuality’ between adult males aged 21 or above, provided
the activities took place in private. These recommendations were ultimately
implemented a decade later in the Sexual Offences Act 1967. They ensured that
the notion of sexual acts which could be tolerated ‘so long as we don’t see them’
was enshrined in law. See more generally on the Wolfenden Report: J. Wolfenden,
Turning Points: The Memoirs of Lord Wolfenden (Bodley Head: London, 1976) and
L. Moran, The Homosexual(ity) of Law (Routledge: London, 1996).
The Journal of Criminal Law (2010) 74 JCL 339–357 339
doi:10.1350/jcla.2010.74.4.647

2. The Journal of Criminal Law
has continued to be attacked in recent years by the UK government8
whilst consensual BDSM practices, criticised in the R v Brown9 decision,
found themselves once more in the sights of lawmakers, this time on the
issue of ‘violent’ pornography.10 In addition, new provisions designed to
extend the law in the arena of inter-generational sex and revised of-
fences relating to public sex, necrophilia and bestiality have also been
introduced. Together, these sexual activities appear to form an axis of
sexual evil.11
These are the sexual ‘evils’ that the State continues to limit or prevent
in its role as moral custodian. Specifically, this custos mores role continues
to extend to those areas where groups believe ‘consent’ has been ob-
tained and given. In recent years, these sexual evils have been joined by
the activity of barebacking. Both those who identify as ‘straight’ and
‘gay’ have come under the focus of the law, specifically in relation to HIV
transmission rather than the broader practice of barebacking. Interna-
tionally, law has been used as a tool to control the spread of HIV across
geographical and arguably cultural borders.12 The decision of the Obama
administration in the USA late in 2009 to lift the 22-year-old ban on
people with HIV entering the country was an important step in changing
the US states’ relationship with those who are HIV positive.13
Over the course of the last decade, the issue of HIV transmission has
received increased legal scrutiny, both in England and Wales and other
legal jurisdictions.14 Two cases have dominated the development of
English law in the area of HIV transmission:15 R v Dica16 and R v
Konzani.17 In Dica, a man knowing himself to be HIV positive engaged in
consensual unprotected sex with two women who were subsequently
diagnosed as HIV positive. It was argued that the women were not fully
aware of the risks of infection but it was found that in any case they did
not have the legal capacity to consent to such ‘harm’. In the later case of
Konzani, a man, knowing himself to be HIV positive had unprotected sex
with three women, without informing them of his HIV status. As the
8 C. Ashford, ‘Male Sex Work and the Internet Effect: Time to Re-evaluate the
Criminal Law?’ (2009) 73 JCL 258.
9 [1994] 1 AC 212.
10 See more generally E. Wilkinson, ‘Perverting Visual Pleasure: Representing
Sadomasochism’ (2009) 12(2) Sexualities 181.
11 Nonetheless, there has been greater ‘mainstreaming’ of kink and fetish. See, e.g.,
M. D. Weiss, ‘Mainstreaming Kink: The Politics of BDSM Representation in US
Popular Media’ (2006) 50(2/3) Journal of Homosexuality 103.
12 See, more generally, L. Gable, K. Gamharter, L. O. Gostin, J. G. Hodge and
R. V. V. Puymbroeck, Legal Aspects of HIV/AIDS: A Guide for Policy and Law Reform
(World Bank: Washington DC, 2007).
13 BBC News Online, ‘Obama to Lift HIV Entry Ban Soon’, 30 October 2009,
available at http://news.bbc.co.uk/1/hi/world/americas/8334810.stm, accessed 4 June
2009.
14 Notably in Canada. See, e.g., D. Holmes and P. O’Byrne, ‘Bareback Sex and the
Law: The Difficult Issue of HIV Status Disclosure’ (2006) 44(7) Journal of
Psychosocial Nursing 26.
15 For a detailed examination of the criminal law in this area, see M. Weait, Intimacy
and Responsibility: The Criminalisation of HIV Transmission (Glasshouse: Abingdon,
2007).
16 [2004] EWCA Crim 1103, [2004] QB 1257.
17 [2005] EWCA Crim 706, [2005] 2 Cr App R 14.
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3. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
man had deliberately sought to hide his HIV positive status, it could not
be argued that he believed his partners were consenting to any risk, as
such consent would have arisen from a deception.
Like Brown before them, these cases explored the role of the judiciary
as custos mores, declaring that the State would determine those activities
to which consent could and could not be given.18 Here, despite their
heterosexual label, the men in Dica and Konzani were behaving outside
the heterosexual state’s image of conventional behaviour rooted in
‘family’-orientated relationships and were constructed as Other.19 In the
Brown case, Lord Templeman drew upon Wolfenden notions of ‘de-
cency’ as a function of the criminal law20 and it is this judicial notion of
decency that still resonates throughout the criminal law. Templeman
further noted in a much-quoted passage that ‘society is entitled and
bound to protect itself against a cult of violence. Pleasure derived from
the infliction of pain is an evil thing. Cruelty is uncivilised’ (emphasis
added). Put simply, Templeman just didn’t ‘get it’. The deliberate or
careless infection of another through barebacking sex could be said to
constitute another form of ‘violence’, another ‘evil’ and raise questions
about whether the state is similarly bound to act to stop such acts
regardless of any consent amongst the parties involved.
This article will argue that the recent HIV transmission jurisprudence
and judicial attitudes towards barebacking reflects a continuation of the
Templeman judicial spirit, a spirit of the State and judiciary as custos
mores. In order to explore these issues, this article will draw on queer
legal theory to evaluate critically the law in the area of ‘barebacking’ and
HIV transmission.
Queering the law
Queer theory and queer legal theory offer us important tools to analyse
and (de)construct the criminal law in relation to barebacking. As a term,
‘queer’ is fluid, presenting challenges for those who seek to pin down
and define ‘queer’.21 Sedgwick describes ‘the open mesh of possibilities.
Gaps, overlaps, dissonances and resonances, lapses and excesses of
meaning when the constituent elements of anyone’s gender, of anyone’s
sexuality aren’t made (or can’t be made) to signify monolithically’.22
Although some, for example Cooper,23 have tried to address the
perception that queer cannot be inclusive unless it is disassociated from
18 This is not restricted to the English courts. Califia has noted similarities between
Brown and BDSM cases in the USA (see P. Califia, Speaking Sex to Power: The Politics
of Queer Sex (Cleis Press: San Francisco, 2002) 250). The Massachusetts case of
Commonwealth v Appleby (1980) 380 Mass 296, 402 NE2d 1051 similarly sets the
precedent that consent cannot be used as a defence to an ‘assault’ even if
consensual.
19 See, more generally, R. Collier, ‘Straight Families, Queer Lives?
Heterosexual(izing) Family Law’ in C. Stychin and D. Herman (eds), Sexuality in
the Legal Arena (Athlone Press: London, 2000).
20 [1994] 1 AC 212 at 233, per Lord Templeman.
21 See, e.g., C. Ashford, ‘Queer Theory and Researching Online Sex Environments’
(2009) 18(3) Information & Communications Technology Law 297.
22 E. K. Sedgwick, Tendencies (Duke University Press: Durham, 1994) 8.
23 S. Cooper, Relating to Queer Theory (Peter Lang: Bern, 2000) 15.
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4. The Journal of Criminal Law
the groups it was originally designed to represent—that is to say, those
identified as lesbian and gay—this criticism has continued. Yet, queer
offers a much more fundamental reconsideration of sexuality, recognis-
ing a fluidity to the construction of sex and the sexual. Butler noted that
‘the assertion “queer” will be necessary as a term of affiliation, but it will
not fully describe those it purports to represent. As a result, it will be
necessary to affirm the contingency of the term: to let it be vanquished
by those who are excluded by the term but who justifiably expect
representation by it’. Butler goes on to argue that queer will ‘take on
meanings that cannot now be anticipated by a younger generation
whose political vocabulary may well carry a very different set of invest-
ments’.24 We can perhaps conclude that the fluidity of identity that
queer suggests and (de)constructs is unsurprisingly at odds with a
criminal law that continues to (de)construct sex in the binary tradition
of good/bad. Married monogamous sex = good, BDSM = bad, bare-
backing = bad and so on.
The legal emphasis upon risk reflects the value judgements that gay
men are also increasingly taking, modifying their constructions of risk as
the HIV epidemic has evolved.25 Dean goes so far as to suggest that in
certain sexual contexts, for example, backrooms, parks, sex clubs and so
on, ‘barebacking has established itself as a new norm and mentioning
condoms has become anomalous, a breach of sexual etiquette’.26 Before
straight society condemns such actions, it should consider Dean’s ques-
tion of whether ‘heterosexuals would find it hard to commit themselves
to a life in which sex always involved condoms’, noting that ‘fucking
without a condom is often regarded as a privilege of the normatively
coupled in the age of AIDS. The right to bareback seems to come only
with monogamy’.27
This is not to say that to queer the law is to remove any notion of an
ethical criminal law framework. Rather it (re)constructs ethics, and the
criminal law, through the prism of queer lived experience(s). Queer
theology has been a notable attempt to debate the nature and form of
such frameworks, albeit in an exclusively Christian context. John
McMahon has argued:
In (re)constructing a queer Christian ethic, therefore, we must at the very
least begin with our own experiences of life, since those who write and
compiled the acknowledged Christian canon did so from another world-
view: one of patriarchy and of heterosexual complementarity.28
24 J. Butler, ‘Bodies that Matter: On the Discursive Limits of “Sex”’ (Routledge: New
York, 1993) 230.
25 K. D. Race, ‘Revaluation of Risk Among Gay Men’ (2003) 15(4) AIDS Education
and Prevention 369.
26 T. Dean, Unlimited Intimacy: Reflections on the Subculture of Barebacking (University of
Chicago Press: Chicago, 2009) 18.
27 Ibid. at 24.
28 J. McMahon, ‘Queer Living: Ethics for Ourselves, Our Societies and Our World’ in
E. Stuart (ed.), Religion Is a Queer Thing: A Guide to the Christian Faith for Lesbian,
Gay, Bisexual and Transgendered People (Cassell: London, 1997) 132.
342

5. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
These lived experiences are increasingly divided between what Carl
Stychin29 (following Robson’s30 conception of the ‘good’ and ‘bad’ les-
bian) has called ‘the good gay’ and ‘the bad queer’.
Rubin has noted the traditional conception of the gay Leatherman of
San Francisco’s South of Market Area (SOMA) as more likely to contract
AIDS, in contrast to the pretty queens and beautiful men of the Castro.31
The bad queer equates to AIDS; the good gay is shopping in fashionable
stores and buying Judy Garland CDs. Dean puts it thus: ‘you could be
openly and proudly gay at the office, but the dozen guys you sucked off
last weekend at Blow Buddies32 must remain a dirty secret’.33 The
success of the Treasure Island Media (TIM) porn company and others
such as Dick Wadd34 and Hot Desert Knights further perpetuates a
divide—with the barebacking men distinctly masculine and with words
such ‘dirty’, ‘nasty’ and ‘pig’ important in the construction of identity.
This hypermasculinity celebrates slutdom and promiscuity.35 Dean has
argued that ‘piggery represents a different construction of male–male
sexuality than we know from either the classical era or the modern
organization of homosexuality’.36 It is perhaps unsurprising then that
piggery brings the law into conflict with identity.
Dean regards TIM as ‘ethnographic as well as a pornographic text’,
documenting barebacking through its approach to film making.37 Paul
Morris himself has said that ‘it’s a job of porn to reflect the experience
and the character of the people who watch it’.38 The apparent prolifera-
tion of this form of pornography is the public revelation of the ‘dirty
secret’ of sex lives, and the growing visibility of the ‘bad queer’.
29 C. F. Stychin, A Nation by Rights (Temple University Press: Philadelphia, 1998) 200.
30 R. Robson, ‘Resisting the Family: Repositioning Lesbian in Legal Theory’ (1994)
19(4) Signs: Journal of Women in Culture and Society 975.
31 G. S. Rubin ‘ Elergy for the Valley of Kings’ in K. Plummer (ed.), Sexualities: Critical
Concepts in Sociology, Volume III: Difference and Diversity of Sexualities (Routledge:
London, 2002).
32 Blow Buddies is a fairly large sex club in San Francisco’s SOMA which features an
extensive series of oral sex ‘stations’ in which the felatee is raised on a large
balcony enabling their penises to be at head height for willing felators. There are
also the usual range of porn screens, sling and group sex areas and mazes.
33 Dean, above n. 26 at 20.
34 Dean (above n. 26 at 117) notes that Dick Wadd prefaced its early movies with an
extensive warning about ‘unsafe sex’ concluding that ‘we hope you will play
safely, but ultimately the choice is yours to make’, and in doing so attempted to
erect a legal protection against encouraging unprotected sex, and with it, HIV
transmission.
35 TIM founder Paul Morris describes his own approach to sex as: ‘my sex is cum-
guzzling, double-dick, real mansex’. Piggery apparently equates to a more
masculine approach to sex—‘real’ sex, available at http://www.treasureislandmedia.
com/TreasureIslandMedia_2007/paulsPapers.php?article=StatementOfPurpose, accessed 4
June 2010.
36 Dean, above n. 26 at 50.
37 Ibid. at 122. This follows ideas first developed by Bill Nichols in the late 1980s.
38 P. Morris, ‘No Limits: Necessary Danger in Porn’, paper presented at the 1998
World Pornography Conference, LA and at the UCSF InSite Discussion on
Barebacking, SF, available at http://www.treasureislandmedia.com/TreasureIslandMedia_
2007/paulsPapers.php?article=noLimits, accessed 4 June 2010.
343

6. The Journal of Criminal Law
Controlling HIV transmission
TIM is just one company that has sought to explore the barebacker
identity. For those men who self-identify as a ‘barebacker’, and perhaps
utilise one or more of the multitude of barebacking websites that sup-
port this subculture,39 they might externally be viewed as being com-
prised of several distinct groups. There is the group that perhaps causes
the most disquiet to those outside this group—the bugchasers. This is a
group of men who deliberately seek to infect (‘gift giver’) or be infected
(‘receive the gift’) with HIV40 and for whom barebacking and the trans-
mission of HIV becomes a fetishised activity.41
A second group are those who do not care whether they are HIV
positive or not, may not know their own status or the status of those
with whom they are engaging in sex. This group might be considered to
be suffering from ‘condom fatigue’, bored and disinterested by a con-
stant barrage of safe-sex campaigns.42 Finally, there is a group that
enjoys barebacking sex because of the feel and intimacy that can be
associated with this form of sex. HIV is not a motivating factor in
engaging in sex and might be viewed more as an ‘occupational hazard’.
The pro-barebacking French novelist and journalist, Erik Remes,
received death threats for seeking to radicalise barebacking as an em-
powered queer activity43 whilst Tim Dean has challenged the assertions
of safe-sex campaigns by commenting ‘let’s face it: at some level we all
enjoy barebacking’.44 For those who enjoy barebacking as sexual play
per se, it is the enjoyment or pleasure that is the motivating factor. These
categories arguably mark a shift from a culture in which gay men
reported peer pressure to use condoms, to a culture in which men feel
pressure to bareback.45
39 For example, Bareback.com at http://www.bareback.com/ and Bareback Real Time
http://www.barebackrt.com/. There are many other sites; however given their clear
efforts to be less susceptible to journalists engaging in ‘fishing expeditions’ and
explicit statements about privacy and/or there use in journalism, they are not
listed here to protect those sites.
40 Louise Hogarth explored this phenomenon in her 2003 film documentary The Gift,
see http://www.thegiftdocumentary.org/, accessed 4 June 2010.
41 See, e.g., J. Elford, G. Bolding, M. Davis, L. Sheer and G. Hart, ‘Barebacking
among HIV-Positive Gay Men in London’ (2007) 34(2) Sexually Transmitted Diseases
93, and D. A. Moskowitz and M. E. Roloff, ‘The Ultimate High: Sexual Addiction
and the Bug Chasing Phenomenon’ (2007) 14 Sexual Addiction & Compulsivity 21.
42 See, e.g., B. D. Adam, W. Husbands, J. Murray and J. Maxwell, ‘AIDS Optimism,
Condom Fatigue, or Self-Esteem? Explaining Unsafe Sex among Gay and Bisexual
Men’ (2005) 42(3) Journal of Sex Research 238.
43 See http://www.erikremes.net/, accessed 4 June 2010. It is perhaps only for the fact
that Remes’ work is in French that it has not been more widely cited, explored
and criticised.
44 Dean, above n. 26 at 24.
45 J. T. Parsons and D. S. Bimbi, ‘Intentional Unprotected Anal Intercourse among
Sex Who Have Sex with Men: Barebacking—from Behavior to Identity’ (2007) 11
AIDS and Behavior 277.
344

7. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
In contrast to these distinctions, Goodroad, Kirsek and Butensky46
and later Carballo-Dieguez and Bauermesiter47 have sought a single
definition with Carballo-Dieguez and Bauermesiter advocating: ‘inten-
tional condomless anal sex in HIV-risk contexts’. Whilst the logic of
developing a single definition for analysis is understandable, this distinc-
tion removes from analysis the individual who does not wear a condom
due to inebriation, lack of thought or other casual or ‘reckless’
behaviour—the unintentional. This distinction also raises questions
about the possible existence of ‘no risk’ contexts.
The law has arguably been less interested in whether an individual
wears a condom or not and instead has focused upon the narrower issue
of HIV transmission which may or may not emerge as a consequence of
not wearing a condom.48
Although the issue of HIV transmission and ‘barebacking’ has ap-
peared less prominent in the national media, the subject has received
increased academic coverage over the last decade49 with a 1997 piece in
Newsweek and, later, a high-profile article in Rolling Stone in 200350 that
served to announce the presence of the bug chasing phenomenon to
more mainstream audiences. That period has been marked by a
heightened prominence of the subculture within gay culture through
the growth of online networks, websites and individual blogs.51 This has
46 B. K. Goodroad, K. M. Kirsey and E. Butensky, ‘Bareback Sex and Gay Men: An
HIV Prevention Failure’ (2000) 11(6) Journal of Associated Nurses AIDS Care 29.
47 A. Carballo-Dieguez and J. Bauermeister, ‘“Barebacking”: Intentional Condomless
Anal Sex in HIV-Risk Contexts: Reasons for and Against It’ (2004) 47(1) Journal of
Homosexuality 1.
48 Other sexually transmitted infections can result from not wearing condoms.
Undiagnosed, Chlamydia can result in infertility amongst women whilst Hepatitis
B can damage the liver and sometimes result in death. Although these sexually
transmitted infections have been the focus of health campaigns within the UK,
they do not receive the attention of the criminal law despite their serious
consequences. Interestingly, this may owe more to the failure of individuals to
come forward with an allegation that their partner had infected them, but it
would be interesting to see how the courts might regard these other forms of
sexually transmitted infection.
49 See, e.g., ‘21,000 Britons Threaten HIV “Time Bomb”’, Sunday Times, 7 June 2009;
‘Pop Star Accused: Ex Partner Says She Give Him HIV’, Guardian, 16 April 2009;
‘Gay Men Warned as HIV Rises’, Guardian, 28 March 2009; ‘HIV Man Arrested’,
Sunday Times, 1 March 2009; ‘Fatal Attraction’, Independent, 25 November 2006;
‘Death Wish: Shocking Increase in Promiscuity and a Culture of High-Risk Sex’,
Independent, 7 November 2005; ‘Bug-Chasing’, Mail on Sunday, 2 February 2003;
‘The AIDS Crisis: Complacency if the Greatest Threat’, Independent, 26 June 2001.
50 G. A. Freeman, ‘In Search of Death’, Rolling Stone, 23 January 2003. Aspects of the
research for this piece were subsequently criticised. However, the underlying
presence of such a subculture was not disputed. See K. Howard, ‘Magazine’s HIV
Claim Rekindles “Gay Plague” Row’ (2003) 326 British Medical Journal 454.
51 Whilst these blogs may sometimes be authored by those involved in a commercial
aspect of sex, they may also involve individuals pursuing this form of sexual
activity. For ethical reasons, links to these blogs have not been provided for many
link to other blogs which in turn may link to blogs where photographs or personal
details reveal a blogger’s identity. For an exploration of the ethical issues involved
in online sex environments, see Ashford, above n. 21.
345

8. The Journal of Criminal Law
been fuelled by a booming barebacking porn industry,52 such as Treasure
Island Media (TIM) discussed earlier.53
In July 2009, TIM, along with a number of other barebacking porn
companies, was effectively banned from the annual International Mr
Leather (IML) event. Organisers issued a letter to all previous vendors at
the event informing them that from the 2010 event, they would ‘no
longer allow participation in the IML Leather Market by any entity
which promotes barebacking or distributes/sells any merchandise tend-
ing to promote or advocate barebacking’.54 TIM founder, Paul Morris,
reported via his Twitter page that: ‘we’ve had huge spikes in sales with
the announcement of each “ban”. I can’t complain’.55
Barebacking remains a highly emotive topic within and beyond the
gay population. For some in the gay ‘community’ HIV and AIDS still
evoke memories of ‘the plague’ and the dramatic events of the 1980s in
which forests of friends and acquaintances fell. Rofes describes just one
month in 1985 which holds typical memories of the time:
During this particular month, seven friends and colleagues died, four in
San Francisco and three in other locations. I supported one friend with the
planning of his suicide. I attended three memorial services. I clipped
another six obituaries of casual friends out of newspapers; some of the
deceased I hadn’t known were ill. I stood by as my HIV-infected lover
developed a series of upper respiratory infections. I observed my best
friend’s HIV-infected lymph nodes swell as his T-cell count dropped
dramatically.56
The subsequent distancing of gay political advocacy from gay men’s sex
cultures is one that persists today.57 Homosexual sexual advocacy
equates to ‘safer sex’ campaigning whilst gay political campaigns have
more recently focused on the ‘vanilla’, and arguably heterosexual goal
of marriage, along with a continuation of equality campaigns around
employment rights, discrimination and access to services.
Barebacking and queer life
Dean has argued that this subcultural group have developed their own
set of ethics58 although this has been questioned by others.59 The discus-
sion of barebacking remains a divisive one and Plummer described
52 ‘Barebacking Popular in Gay Porn’ (2008) 42(5) Contemporary Sexuality 12.
53 Some commentators, notably Paul Burston, have argued bareback porn videos and
websites ‘normalise and even fetishise unprotected sex’ and challenged HIV
charities to respond. See P. Burston, ‘The HIV Charities State their Position on
“Barebacking”’, Time Out London, 8 December 2009.
54 The full letter was posted by numerous barebacking and porn companies/
commentators. It can be viewed here: http://www.rawtop.com/blog/resources/2009/07/
iml-bareback-ban.jpg, accessed 4 June 2010.
55 http://twitter.com/paulmorrisTIM, accessed 4 June 2010.
56 E. Rofes, Reviving the Tribe: Regenerating Gay Men’s Sexuality and Culture in the
Ongoing Epidemic (Harrington Park Press: New York, 1996) 22.
57 E. Rofes, Dry Bones Breathe: Gay Men Creating Post-AIDS Identities and Culture
(Harrington Park Press: New York, 1998) 176.
58 Dean, above n. 26 at 79.
59 See, e.g., K.Plummer, ‘Riding Bareback through Barriers’, The Times Higher
Education Supplement, 48, 9 July 2009.
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9. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
Dean’s controversial 2009 text as ‘a wonderful source for [homophobes]
continuing, hateful attack on gay life’.60 Dean’s book has been received
more positively by queer scholars and activists, as it offers an academic
queering of the barebacking phenomenon and seeks to move the prac-
tice beyond a narrow narrative of shame.61 The consequences of sex
have long held the possibility of danger, but for most contemporary
Western gay men, this has only been a conscious risk since the emer-
gence of HIV/AIDS62 and with the emergence of the virus came a moral
scrutiny of the queer lifestyle and narratives of shame around promiscu-
ity and unprotected sex—narratives that are now being translated into
legal responses.
The sex and ‘lifestyle’ associated with ‘gay’ men and the spread of
HIV/AIDS has long received the attention of policymakers. In the 1980s,
the then mayor of San Francisco, Dianne Feinstein, shut more than 20
bathhouses and today none remains in San Francisco.63 In their place, is
an ever-dwindling number of sex clubs—just three at the time of writ-
ing.64 This follows a similar pattern of closures in other parts of
the USA,65 reflecting a targeted approach to high-risk commercial
‘venues’.66 Recent years have seen other countries also seeking to
address HIV transmission by creating new legal penalties.67
In Australia, sex-on-premises venues have been licensed and are
effectively temples of promiscuous sex with large mazes, a cornucopia of
60 Above n. 59.
61 M. Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (Harvard
University Press: Cambridge, 1999). Although Warner explicitly states that he is
not arguing for a right to transmit HIV or even mere sexual libertarianism
(describing such labels as slander), he does explore what he has termed a
‘hierarchy of shame’ noting that ‘again and again, we have seen that people want
to put sex in its place, both for themselves and for others. And the consequence,
as we have seen, is not only that they create contradictions for themselves, but
also that they create damaging hierarchies of shame and elaborate mechanisms to
enforce those hierarchies’ (p. 195).
62 M. Shernoff, Without Condoms: Unprotected Sex, Gay Men & Barebacking (Routledge:
New York, 2006) 3.
63 B. Kelling, ‘Lovin’ and Losin’: What do folks leave behind at S.F. sex clubs? We
knew you’d want to know’, SF Weekly, 10 September 2003, http://www.sfweekly.com/
2003-09-10/news/lovin-and-losin/, accessed 4 June 2010.
64 Blow Buddies http://www.blowbuddies.com/, Eros http://www.erossf.com/ and Mack
Folsom Prison http://www.mackfolsomprison.com/, all accessed 4 June 2010. Eros may
be viewed as a ‘cross-over’ venue as it does incorporate elements of the gay sauna
where as broadly speaking, blow buddies and Mack Folsom are clearly distinct
from a sauna with Blow Buddies focusing more upon oral sex and Mack Folsom
Prison more on fetish and penetrative sex.
65 See, e.g., M. E. Elovitz and P. J. Edwards, ‘The D.O.H. Papers: Regulating Public
Sex in New York City’ in D. Bedfellows (ed.), Policing Public Sex (South End Press:
Boston, 1996).
66 D. Binson, W. J.Woods, L. Pollack, J. Paul, R. Stall and J. A. Catania, ‘Differential
HIV Risk in Bathhouses and Public Cruising Areas’ (2001) 91(9) American Journal
of Public Health 1482.
67 Notably Canada. See, e.g., D. Holmes and P. O’Byrne, ‘Bareback Sex and the Law:
The Difficult Issue of HIV Status Disclosure’ (2006) 44(7) Journal of Psychosocial
Nursing 26. For a consideration of the approach taken in the Netherlands, see
Judgment of 25 March 2003, Case No. LJN AE9049; Judgment of 18 January 2005,
Case No. LJN AR1860, Supreme of the Netherlands, Criminal Division (2006) 70
JCL 485, case note by W. van Kouwen and K. Bruinenberg entitled ‘HIV
Transmission: Criminalisation’.
347

10. The Journal of Criminal Law
group sex spaces, porn cinemas, private booths and fetish spaces cater-
ing for watersports68 together with other sexual-social spaces. Mel-
bourne’s Club 8069 was originally located in Sydney where it became the
focus of community activism in the early 1980s with local queers
defending the venue.70 Such a radical defence of an overtly sexual
venue seems far less likely within modern activism.
In the UK, the continued presence of saunas and small ‘clubs’ that
host sex ‘parties’ make up commercial sex space along with a small
number of ‘gay cruise clubs’ such as Birmingham’s Boltz Club and
London’s Play Pit. Perhaps unsurprisingly, these venues focus on Lon-
don with a small number of regional focal points, notably in Manchester
and increasingly Leeds. Although there have been local attempts to close
venues from time to time, there has not been the same political focus on
sex venues as there has been in the USA.71
The internet has been a critical driver in enabling the growth in the
number of pro-barebacking websites and some ‘bug chasing’ or pro-HIV
transmission sites.72 As with other sexual phenomena,73 the internet has
acted as a space in which these individuals, who might otherwise be
isolated, can come together, share fantasies, forge a sense of identity and
develop new notions of self. These spaces also enable individuals to plan
and organise ‘real-world’ sexual encounters in which these developing
fantasies can be played out.
These websites operate in conjunction with smaller social networks
that function via sites such as Facebook and Twitter and enable ‘parties’
to be held in individual homes and information shared within a smaller
group. At other times, HIV+ groups have been formed to facilitate a
68 Watersports or ‘golden showers’ here describes urinating on others or being
urinated upon as sexual play.
69 http://www.club80.net/, accessed 4 June 2010.
70 See, more generally, G. Wotherspoon, ‘City of the Plain’: History of a Gay Sub-culture,
(Hale & Iremonger: Sydney, 1991).
71 The focus in England and Wales has been upon striptease venues. See P. Hubbard,
‘Opposing Striptopia: The Embattled Spaces of Adult Entertainment’ (2009) 12(6)
Sexualities 721.
72 See, e.g., R. C. Berg, ‘Barebacking among MSN Internet Users’ (2007) 12 AIDS and
Behavior 822; G. W. Dowsett, H. Williams, A. Ventuneac and A. Carballo-Dieguez,
‘“Taking it Like a Man”: Masculinity and Barebacking Online’ (2008) 11(1/2)
Sexualities 121; C. Grov, ‘Barebacking Websites: Electronic Environments for
Reducing or Inducing HIV Risk’ (2006) 18(8) AIDS Care 990; C. Grov, J. A.
DeBusk, D. S. Bimbi, S. A. Golub, J. E. Nanin and J. T. Parsons, ‘Barebacking, the
Internet, and Harm Reduction: An Intercept Survey with Gay and Bisexual Men
in Los Angeles and New York City’ (2007) 11 Aids and Behavior 527; C. Grov and
J. T. Parsons, ‘Bug Chasing and Gift Giving: The Potential for HIV Transmission
among Barebackers on the Internet’ (2006) 18(6) AIDS Education and Prevention
490; A. Leobon and L. Frigault, ‘Frequent and Systematic Unprotected Anal
Intercourse among Men Using the Internet to Meet Other Men for Sexual
Purposes in France: Results from the “Gay Net Barometer 2006” Survey’ (2008)
20(4) AIDS Care 478; S. D. Rhodes, ‘Hookups or Health Promotion? An
Exploratory Study of a Chat Room-based HIV Prevention Intervention for Men
who Have Sex with Men’ (2004) 16(4) AIDS Education and Prevention 315; and
R. Tewksbury, ‘“Click Here for HIV”: An Analysis of Internet-Based Bug Chasers
and Bug Givers’ (2006) 27 Deviant Behaviour 379.
73 See, e.g., C. Ashford, ‘Sexuality, Public Space and the Criminal Law: The Cottaging
Phenomenon’ (2007) 71 JCL 506.
348

11. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
‘safe’ environment for positive men to engage in unprotected sex with
no questions asked.
One site, which charges for attendance, states that those who pur-
chase tickets ‘must be 18+, fit, sexy, hung’. It adds that attendees should
not be overweight. These spaces are not simply the preserve of those
who are HIV positive and identify as a barebacker, requiring an addi-
tional and quite specific physical identity in order to be included as
active participants.
This growth in ‘virtual’ space and consolidation of the barebacker
identity presents a significant challenge to the criminal law and the
State’s attempt to act as a sexual custos mores. This very act of criminalisa-
tion may well be contributing to the construction of the barebacking
identity as Other and with the ever increasing focus that follows, the
fetish grows. For the criminal law, there remains a bafflement as to why
men would embrace sexual behaviours with such associated high risks,
but such confusion reflects a failure to understand the queer sexual
world, whether it is, for example, BDSM, public sex or barebacking.
Motivations for increased risk taking
Shernoff74 has identified six dominant theories that have emerged as
psychologists and other academic scholars seek to understand why men
engage in unprotected sex. These comprise: negative attitudes toward
condom use; how being in a committed compared to a non-committed
couple relationship affects whether a condom is used; strongly identify-
ing with or feeling alienated from the gay community; internalised
homophobia; a sense of inevitability of becoming infected with HIV as a
gay man; and the effects of substance use. Gauthier and Forsyth go
further, arguing a category of ‘political action’,75 suggesting a radical-
isation of the gay sexual identity. Mowlabocus adds ‘it is not unreason-
able to state that barebacking is in fact a by-product of earlier HIV
prevention campaigns’76 and Graydon has discussed the ‘carnivalesque’
virtual spaces that have been created re-enforcing a ‘Gift’ narrative.77
In addition, Langdridge and Butt78 have commented on the erotic role
of power exchange within the sado-masochist community noting that
the actions of this subcultural group do not necessarily involve the
transmission of pain, but can be about taking upon submissive/
dominating roles although significantly these labels may not be fixed,
resonating with queer theory’s desire to move beyond such fixed
labels.
74 Shernoff, above n. 62 at 71.
75 D. K. Gauthier and C. J. Forsyth, ‘Bareback Sex, Bug Chasers, and the Gift of
Death’ (1999) 20(1) Deviant Behaviour 85.
76 S. Mowlabocus, ‘Life Outside the Latex: HIV, Sex, and the Online Barebacking
Community’ in K. O’Riordan and D. J. Phillips (eds), Queer Online: Media Technology
& Sexuality (Peter Lang Publishing: New York, 2007).
77 M. Graydon, ‘Don’t Bother to Wrap It: Online Giftgiver and Bugchaser
Newsgroups, the Social Impact of Gift Exchanges and the “Carnivalesque”’ (2007)
9(3) Culture, Health & Sexuality: 277.
78 D. Langdridge and T. Butt, ‘The Erotic Construction of Power Exchange’ (2005) 18
Journal of Constructivist Psychology 65.
349

12. The Journal of Criminal Law
Rye and Meaney79 also remind us that a primary reason for sexual
activity is pleasure, and the pleasurable nature of barebacking should
not be overlooked. One of Carballo-Dieguez’s informants in his 2001
study commented: ‘It only takes once to just feel it and then you crave
it. [Sex without condoms] is so available these days that it’s like a
drug.’80 This might suggest that it is the illicit character of this pleasure
that heightens the experience and renders it addictive.
Along with the concept of pleasure, the notion of metamorphosis
must also be considered. This casts the ‘bug chaser’ as someone actively
seeking to contract HIV or to undergo seroconversion. Unlike the term
‘HIV+’, seroconversion implies some sort of process, a change, a meta-
morphosis and this is perhaps important in attributing a ritualistic aspect
to this phenomenon. This idea of the bug chaser remains a controversial
one and a disputed identity at that. Moskowitz and Roloff noted in 2007
that ‘bug chasing can no longer be considered an urban legend or an
inductive fallacy. Bug chasers comprise a certifiably real subculture’.81
Yet, to recognise intentional HIV transmission amongst gay men or to
imply cultures of promiscuity remains deeply controversial within the
gay academic and activist communities,82 largely for reasons of the
changed gay political agenda set out earlier and the ‘de-sexed’ gay
identity that has come to dominate politically, legally and culturally.
In seeking to understand the motivation of gay men who do not
practise safe sex, one category, identified by Shernoff as a ‘passive
condom user’,83 would use condoms if the other partner prompted their
use, but if the partner did not say anything and did not seek to use
condoms, then he would engage in unsafe sexual practices. This is not
an individual deliberately seeking to be infected with HIV, but one
prepared to take risks in order to meet his own ‘interapsychic and inter-
personal needs’.84
The criminal law has, therefore, been forced to attempt to come to
grips with a myriad of identities and understandings of the term ‘bare-
backing’ and the cornucopia of behaviours that may form part of that so
labelled identity. In doing so, the law has sought to define a type of
behaviour for which it should be a moral custodian. Ormerod has noted
that the law has focused on a category of behaviour that might be
termed ‘blameworthy’, although he recognises the need for discussion
79 B. J. Rye and G. J. Meaney, ‘The Pursuit of Sexual Pleasure’ (2007) 11(1) Sexuality
& Culture 28.
80 A.Carballo-Dieguez, ‘HIV, Barebacking, and Gay Men’s Sexuality, Circa 2001’
(2001) 26(3) Journal of Sex Education and Therapy 225.
81 D. A. Moskowitz and M. E. Roloff, ‘The Existence of a Bug Chasing Subculture’
(2007) 9(4) Culture, Health & Sexuality 347.
82 See, e.g., M. L. Crossley, ‘Making Sense of ‘Barebacking’: Gay Men’s Narratives,
Unsafe Sex and “Resistence Habitus”’ (2004) 43 British Journal of Social Psychology
225; and the response: M. Barker, G. Hagger-Johnson, P. Hegarty, C. Hutchison
and D. Riggs, ‘Responses from the Lesbian & Gay Psychology Section to Crossley’s
“Making Sense of barebacking”’ (2007) 46 British Journal of Social Psychology 667.
83 Shernoff, above n. 62 at 65–7.
84 Ibid. at 67.
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13. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
around this term.85 This idea of ‘blameworthy’ behaviour or behaviour
that falls beyond the predetermined socio-sexual standard of the judici-
ary was most clearly set out in the Brown case.
Stopping the evil-doers: revisiting Brown
The facts of R v Brown are well known.86 The case involved a group of
men who had been engaging in BDSM and determined that consent was
no defence to an assault causing actual bodily harm. A number of myths
emerged around the case, notably the incident of a penis being nailed to
the floor that further served to render the behaviour ‘other’ within the
minds of the judiciary, media and subsequent academic discourse. White
notes that, in truth, the nail had been inserted into a pre-existing
piercing and this element was edited out of the three-hour video shown
to the jury. There were in total, over 16 hours of videotape that could
have been made available.87
This behaviour, as Fafinski88 has noted, was distinguished from
‘horseplay’ whether in the form of boys engaging in ‘rough play’89 or
military personnel ‘fooling around’.90 These modes of behaviour reflect
a traditional ‘boys will be boys’ view of masculinities which Brown, with
its overt and self-evidently queer behaviour, apparently defied. Sim-
ilarly, the behaviour participated in was also contrasted to the concept of
‘informed consent’, utilised in the medico-legal context of a patient
consenting to treatment and the risks that may be involved.91
The behaviour was therefore such that it fell beyond the cultural
terms of reference with which the courts were familiar. Lord Temple-
man, who spends the first part of his judgment discussing duelling,
would not, it seems reasonable to suppose, be as familiar with BDSM
practices or, indeed, barebacking as sexual play.
The new evil-doers: after Brown
Just as Brown may be regarded as a case inciting fear, revealing the queer
sexual experience as a radical challenge to the heteronormative sexual
relationship, so too does the developing law in relation to barebacking
and HIV transmission represent a further deeper fear. The fear sur-
rounding HIV is one that has been government sponsored with large-
85 D. Ormerod, ‘Criminalizing HIV Transmission—Still No Effective Solutions’ (2001)
30(2) Common Law World Review 135.
86 An excellent summary and contextualisation can be found in P. Califia, Public Sex:
The Culture of Radical Sex, 2nd edn (Cleis Press: San Francisco, 2000) 139–47.
87 C. White, ‘The Spanner Trial and the Changing Law on Sadomasochism in the UK’
(2006) 50(2/3) Journal of Homosexuality 167.
88 R v A (2005) 69 JCL 394, CA, case note by S. Fafinski entitled ‘Homicide: Consent
and Horseplay’.
89 R v Jones (1986) 83 Cr App Rep 375.
90 R v Aitken [1992] 1 WLR 1006.
91 See M. A. Jones, ‘Informed Consent and Other Fairy Stories’ (1999) 7 Medical Law
Review 103.
351

14. The Journal of Criminal Law
scale health campaigns revealing HIV as the harbinger of death. School
sexual health programmes attempt to reiterate further the message of
fear. ‘Be afraid’ has been the traditional warning and it has been seen
as historically effective. Warburton has noted that, in America, this fear
has taken the form of almost all states having an HIV-related statute and
one American politician suggested all people with AIDS should be
tattooed92.
The World Health Organisation’s (WHO) most recent global summary
of ‘the AIDS epidemic’ states that there are between 30 and 36 million
people living with HIV in 2007.93 To put that six million margin into
some sort of context, that is more than the estimated populations of
Finland, Ireland, Norway, New Zealand, the United Arab Emirates and
Kuwait to name but a few. We are in the realms of significant
guesswork.
The WHO also estimates that there were between 1.8 and 2.3 million
people globally who died of AIDS in 2007. This figure inevitably includes
all of those who do not have access to medical care and the drug
therapies that those in the West are able to access. The high degree of
estimation in these figures is also understandable, but contributes to the
intangible and uncertain image of HIV/AIDS.
The WHO figures for the UK reveal consistent growth in the number
of reported HIV cases since 1996, and the most recent figures reveal
there were 8,925 new infections in 2006 (5,197 males and 3,727 fe-
males), up from 3,146 in 1996.94 In the same period, the number of
people in the UK recorded as ‘reported AIDS cases’ in a given year fell
from 1,443 in 1996 to 857 in 2006, making the perception that HIV no
longer automatically equates to death a reality. One epidemiologist
commented in 2009 that: ‘HIV is no longer a mass murder in rich
countries. It is an inconvenient disease that will have you taking pills for
the rest of your life, cost taxpayers lots of money and make big pharma
rich.’95
Set against these figures of rising HIV rates, the Home Office and Law
Commission have published a number of reports, notably Violence: Re-
forming Offences Against the Person Act 1861 in 199896 and Consent in the
Criminal Law in 1995.97 The 1995 paper addressed the specific subject of
HIV transmission and imposing a duty to inform a partner of one’s HIV
92 D. Warburton, ‘A Critical Review of English Law in Respect of Criminalising
Blameworthy Behaviour by HIV+ Individuals’ (2004) 68 JCL 55.
93 http://www.who.int/hiv/data/2008_global_summary_AIDS_ep.png, accessed 5 June
2010.
94 UNAIDS/WHO, Epidemiological Fact Sheet on HIV and AIDS: Core data on
epidemiology and response: United Kingdom of Great Britain and Northern
Ireland’ (UNAIDS/WHO: Geneva, 2008), available at http://apps.who.int/globalatlas/
predefinedReports/EFS2008/full/EFS2008_GB.pdf, 5 June 2010.
95 E. Pisani, ‘HIV Doesn’t Always Kill’, Guardian, 9 September 2009.
96 Home Office, Offences Against the Person Act 1861 (Home Office: London, 1998). This
was largely based on earlier proposals from 1993. See Weait, above n. 15 at 21.
97 Law Commission, Consent and the Criminal Law (Consultation Paper No. 139)
(HMSO: London, 1995).
352

15. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
positive status.98 Ultimately the proposals were dropped and it has been
left to the common law to define the law in this area.
Both the judgment of Dica and the subsequent analytical legal dis-
course illustrates a heteronormative construction and understanding of
the sexual relationship. Weait notes that it was not the court’s intention
in Dica to criminalise the HIV positive Roman Catholic husband who has
unprotected sex with his wife due to his faith-based refusal to wear
condoms.99 Yet, the question of why a man who believes in a great
spiritual being is a more valid reason than a group of men who wish to
consent to either an act of BDSM or deliberate HIV transmission has,
until now, been unasked. Moreover, as Gauthier and Forsyth have
noted,100 whilst barebacking has been constructed as deviant behaviour
within the ‘gay’ narrative, it has not been viewed as such within the
narrative of married heterosexuals.101 The Dica decision draws a distinc-
tion between those who take risk and those who engage in an act which
they are certain will result in harm. Would a health practitioner suggest
that a sustained practice of barebacking will result in the transmission of
HIV?
Judge LJ went on to state in Dica that:
These, and similar risks, have always been taken by adults consenting to
sexual intercourse. Different situations, no less potentially fraught, have to
be addressed by them. Modern society has not thought to criminalise those
who have willingly accepted the risks, and we know of no cases where one
or other of consenting adults has been prosecuted, let alone convicted, for
the consequences of doing so.102
The court was seeking to recognise that most people engage in sex with
a partner that may involve some degree of risk. Sex is not a risk-free
activity and consequently, consenting adults should expect a degree of
risk.
However, Chalmers has noted that to talk of ‘the risk’ is misleading in
itself in that risk is not a constant.103 Rather, ‘the risk V believes she is
consenting to is incommensurate with the actual risk of which D is
aware’. At a barebacking party, where ‘V’ believes a number of players
are HIV positive but others might not be, does it matter that D knows
with certainty that he is HIV positive? V clearly knew there was a risk,
and made an informed decision about attending the event, but through
whose prism of morality and consent are we judging the degree of
that consent? Chalmers’ point, though a valid one within the context
in which he made it, may be limited to construing ‘risk’ through the
prism of heteronormative consent in which the desire itself is
incomprehensible.
98 Ormerod, above n. 85.
99 Weait, above n. 15 at 173.
100 D. K. Gauthier and C. J. Forsyth, ‘Bareback Sex, Bug Chasers, and the Gift of
Death’ (1999) 20(1) Deviant Behaviour 85.
101 See also T. Peterkin, ‘Good for You, says Professor’, Scotsman, 3 August 2009.
102 [2004] QB 1257, [2004] EWCA Crim 706 at 1271, per Judge LJ.
103 J. Chalmers, Legal Responses to HIV and AIDS (Hart Publishing: Oxford, 2008) 145.
353

16. The Journal of Criminal Law
Beyond heteronormative consent
In the BDSM encounter, consent has to be explicitly negotiated and
agreed.104 The ‘safe, sane and consensual’ code is significant in govern-
ing acts which on the outside may appear to be depictions of rape,
enslavement or other power-based play.
Nonetheless, in Lord Mustill’s terms, one must establish whether a
‘critical level’ of behaviour has been reached.105 This notion of limits
upon limiting consent has, as Davies has noted,106 evolved, enabling the
court to view the Clarence107 decision, in which a husband was not liable
for the reckless passing of a sexually transmitted infection to his wife,
now to be viewed as obsolete. The decision in Clarence was arguably a
reflection of what was patriarchal power within the family unit, whilst
more recent decisions perhaps reflect state patriarchal power.
Lord Mustill recognised that the ‘critical level’ in Brown was going to
become uncertain over time, commenting in his dissenting judgment:
Once again it appears to me that as a matter of policy the courts have
decided that the criminal law does not concern itself with these activities,
provided that they do not go too far. It also seems plain that as the general
social appreciation of what is tolerable and of the proper role of the state in
regulating the lives of individuals changes with the passage of time, so we
shall expect to find that the assumptions of the criminal justice system
about what types of conduct are properly excluded from its scope, and
about what is meant by going ‘too far,’ will not remain constant.108
A husband performing oral sex upon his wife was once unthinkable but
such an act has become socially acceptable. Sexual practices evolve and
shift. Lord Mustill’s suggestion is simply that the criminal law should
reflect that.
In R v Wilson,109 consensual activity between a husband and wife was
deemed acceptable, even extending Lord Mustill’s ‘limits’ to include an
individual branding another individual with his own initials via the
means of a hot knife. At first instance, the court had felt bound by R v
Donovan110 and Brown.111 On appeal, Russell LJ distinguished the case
factually from Brown and Donovan stating:
Mrs. Wilson not only consented to that which the appellant did, she
instigated it. There was no aggressive intent on the part of the appellant. On
the contrary, far from wishing to cause injury to his wife, the appellant’s
desire was to assist her in what she regarded as the acquisition of a desirable
104 D. Langdridge and T. Butt, ‘A Hermeneutic Phenomenological Investigation of the
Construction of Sadomasochistic Identities’ (2004) 7(1) Sexualities 31; G. W. Taylor
and J. Ussher, ‘Making Sense of S&M: A Discourse Analytic Account’ (2001) 4(3)
Sexualities 293.
105 R v Brown [1994] 1 AC 212 at 103.
106 M. Davies, ‘R v Dica: Lessons in Practising Unsafe Sex’ (2004) 68 JCL 498.
107 R v Clarence (1886–90) 16 Cox CC 511.
108 [1994] 1 AC 212 at 267.
109 [1997] QB 47.
110 [1934] 2 KB 498.
111 See S. Nash, ‘Consent Public Policy or Legal Moralism?’ (1996) 146 NLJ 382, and
L. Bibbings and P. Aldridge, ‘Sexual Expression, Body Alteration, and the Defence
of Consent’ (1993) 20 Journal of Law and Society 356.
354

17. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
piece of personal adornment, perhaps in this day and age no less under-
standable than the piercing of nostrils or even tongues for the purposes of
inserting decorative jewellery.112
It continues to surprise students of law that it was not until the case of
R v R in 1992113 that the law ceased to presume a women’s consent to
sex within the confines of marriage and recognised marital rape. This
was important in contributing to the repositioning of the legal woman as
inferior and subservient to the male legal body, but despite protestations
to the contrary, the law continues to construct the sexual within the
boundaries of a heteronormative hegemony.
The issue of what is being consented to remains a somewhat blurred
area in relation to barebacking. There is the issue of ‘knowability’ in
terms of whether individuals know with true certainty that they are HIV
negative (dependent upon the time of their last test and whether they
have had ‘unprotected’ sex since that time). There is also the difficulty of
stealthing whereby individuals might be consenting to engage in sexual
play as a ‘top’ or ‘bottom’ on the basis that the other partner is negative
but they are concealing their true HIV status.
These ‘top’ and ‘bottom’ roles, or inserter and insertee, are also
significant in strategic positioning during sex. Tim Dean has noted that
the high-risk situation of barebacking may be ameliorated by the HIV
positive individual taking the role of bottom and the negative partner
takes the ‘top’ role. Dean confesses to himself regularly undertaking this
strategy when barebacking strangers.114
Much of the research into the barebacking phenomenon has utilised
the internet but this inevitably creates difficulties in clearly establishing
figures for the number of men intent on transmitting HIV, on giftgiving
and being ‘pozzed up’. The blogosphere, social networking sites and
discussion boards spew large numbers of instances of postings that
suggest such behaviour,115 but these discussion boards also reveal de-
bates about whether postings amount to true ‘desire’ or ‘fantasy’.
Nonetheless, they do point to a likelihood of this activity existing and
we also know from rare honest academic accounts, such as Tim Dean’s,
that these activities are taking place with venues such as San Francisco’s
Folsom Mack Prison and other commercial sex venues that support a
barebacking community. Other scholars, including myself, have heard
and exchanged in anecdotal discussions about barebacking in commer-
cial venues in the UK, Australia and North America and individual
homes, but the publication of those experiences in more scholarly
outlets remain rare. Behaviour in which individuals engage in ‘unpro-
tected’ sexual encounters with multiple partners may be considered to
be engaging in ‘reckless’ behaviour, especially where they know there
112 [1997] QB 47 at 50.
113 R v R [1992] 1 AC 599.
114 Dean, above n. 26 at 15.
115 See, e.g., C. Grov, ‘“Make Me Your Death Salve”: Men Who Have Sex with Men
and Use the Internet to Intentionally Spread HIV’ (2004) 25(4) Deviant Behaviour
329.
355

18. The Journal of Criminal Law
are HIV positive players in the room. Yet, if they knew that when they
entered, is there a role for the criminal law in these proceedings?
Bohlander has suggested in this journal that the idea ‘one sector of
society, small or large [should be given] . . . unqualified precedence over
the interests of other groups and society as a whole, in a—in my view—
misguided attempt at achieving total equalisation’.116 Far from seeking
equalisation, this article seeks to argue for difference, and for a recogni-
tion, as Judge LJ stated in Dica, that ‘sexual relationships are pre-
eminently private and essential personal to the individuals involved in
them’.117
Those who seek out to infect others deliberately with HIV through
‘stealthing’ or deception, may, as Munro has noted,118 prima facie appear
to be engaging in a more obvious criminal offences. That other people
are choosing to be the willing sexual partners, either knowing, assuming
or not caring that they are HIV positive is seen as beyond ‘erotic play’.
Similarly, Brown constructs certain acts of BDSM as an act of violence119
rather than mere ‘erotic play’. Yet, in both instances, although perhaps
the BDSM community would not welcome a theoretical comparison,
the sexual play involves willing and consenting players.
Conclusion
If it is accepted that paraphilias, such as the fetishisation of HIV transmis-
sion, are ‘ineradicable once established’, then we must accept that legal
control will not prevent this behaviour from taking place.120 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 and Immigration
Act 2008 has a similar ‘cloak’ of preventing certain forms of sexual
behaviour.121 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 ques-
tions of jurisprudence, philosophy and the ‘appropriate role of law in
society, even of the nature of society itself’.122 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
116 M. Bohlander, ‘Mistaken Consent to Sex, Political Correctness and Correct Policy’
(2007) 71 JCL 412.
117 [2004] EWCA Crim 1103, [2004] QB 1257 at 1271.
118 V. E. Munro, ‘On Responsible Relationships and Irresponsible Sex: Criminalising
the Reckless Transmission of HIV: R v Dica and R v Konzani’ (2007) 19(1) Child and
Family Law Quarterly 112.
119 C. White, ‘The Spanner Trial and the Changing Law on Sadomasochism in the UK’
(2006) 50(2/3) Journal of Homosexuality 167.
120 R. L. Munroe and M. Gauvain, ‘Why the Paraphilias? Domesticating Strange Sex’
(2001) 35(1) Cross-Cultural Research 44.
121 Prosecutions have followed from this legislation, but these have concerned the
possession of images depicting bestiality rather than the behaviour the Act was
apparently designed to target.
122 R. Townshend-Smith, ‘Homespun Morals’ (1993) 143 NLJ 680.
356

19. Barebacking and the ‘Cult of Violence’: Queering the Criminal Law
on the law is palpable. Those who do speak out, like Erik Remes, have
received death threats, or are accused of ‘giving ammunition’ to homo-
phobes, as in the case of Tim Dean.
Susan Edwards, writing on Brown commented that ‘it is an intellec-
tually 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’.123 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 hetero-
normative, 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’,124 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’.125
The evolutionary approach of law as a responder to social change,
advocated by Lord Mustill, may yet see the emergence of a new ap-
proach to barebacking and HIV transmission within criminal law. How-
ever, 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’126 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.
123 S. Edwards, ‘No Defence for a Sado-Masochistic Libido’ (1993) 143 NLJ 406.
124 M. Shernoff, ‘Condomless Sex: Gay Men, Barebacking and Harm Reduction’
(2006) 51(2) Social Work 106.
125 S. Burris, L. Beletsky, J. Burleson, P. Case and Z. Lazzarini, ‘Do Criminal Laws
Influence HIV Risk Behaviour? An Empirical Trial’ (2007) 39 Arizona State Law
Journal 467.
126 [2004] EWCA Crim 1103, [2004] QB 1257 at 1271.
357