Abstract
This paper examines different experts’ constructions of and challenges to HIV criminalization. By problematizing the premise of HIV criminalization in the Finnish context, the paper critically examines the assumed tenets of Finnish legal culture as Nordic Exceptionalist – as exceptionally welfare-oriented, and with a non-punitive system of state punishment that is exceptionally fair and benevolent. Ethnographic interviews with doctors, lawyers, criminologists and NGO workers, as well as legal-archival work on HIV criminalization, fragment the Nordic Exceptionalist narrative, with its underlying suppositions of the Nordic nation containing nationally coherent, rationally benevolent and expertise-oriented legal and welfare spheres. Applying an anthropological lens to this complex medico-legal borderland helps to articulate the normative order underlying Nordic criminal-legal doctrine and offers an approach to examine complex junctions between law and medicine.
This paper will discuss the construction of HIV criminalization and the contradictions it brings to assumptions of Finnish legal culture. Numerous scholars have pointed to how HIV criminalization – the use of criminal law to prosecute an individual for the supposedly intentional transmission, exposure, or non-disclosure of HIV status – reveals mechanisms of (non)belonging and citizenship along lines, for instance, of race, gender, sexuality and class globally (Bernard et al., 2022; Bredström, 2008). This paper will turn to an introductory case study on the intersecting marginalizations of HIV and imprisonment in Finland, allowing for a critical discussion on the place of expertise in the nexus of Nordic welfare and punishment.
It has been documented that 130 countries have used either general criminal laws (under categories for instance of assault or attempted murder) or HIV-specific statutes to unjustly criminalize people living with HIV (Bernard et al., 2022: 395). Moreover, “it has been extensively documented that HIV criminalization in fact poses a barrier to HIV prevention, care, and treatment and negatively affects the quality of life of those affected by HIV” (Bernard et al., 2022: 395). Nordic countries have been overrepresented in criminalizing HIV (GNP+, 2010), and despite the fact that Finland has previously been among the countries with the highest rates of HIV criminalization cases per capita of people living with HIV (GNP+, 2010), critical academic engagement with the phenomenon is meagre. From the early 1990s, there have been an estimated 20 cases in which HIV has been criminalized under the Finnish Criminal Code, under categories of murder, aggravated assault, imperilment or resistance to a public official (GNP+, 2010). The precise number of cases is not known to NGOs or legal scholars: trials may have been held confidentially, without public access; outcomes have been registered locally and under various charges, making them impossible to locate fully (Clarke, 2011). This article therefore brings light to an understudied field of criminalization in Finland, one which highlights contradictions in the Nordic Exceptionalist discourses of state punishment that the Finnish legal sphere is often understood through.
The article approaches understanding HIV criminalization with a twofold methodology – legal-archival research and ethnographic interviews of legal, medical, and NGO professionals. Finnish court cases around HIV have long lived in tension with medical evidence on HIV transmission and medication. Although the use of a combination of three antiretroviral medications starting from 1996 (UNAIDS, 2021) led to a breakthrough in HIV treatment, the impact of this medication, which has technically made HIV a condition to be lived with, has by no means been universally applied or a temporally linear process (Dziuban and Sekuler, 2021). HIV being un-transmittable when medication has worked to lower an individual's viral load 1 has become a part of community and medical knowledge since then. A statement by Swiss doctors in 2008 provided the first steps for consensus among the medical community over HIV-positive individuals on effective HIV treatment being non-infectious (Bernard, 2008). Further, two large studies on serodiscordant couples (meaning one partner is HIV-positive and one is HIV-negative), one announced in 2014 and published in 2016, and the other announced in 2018 and published the next year, showed that the chances of an HIV-positive individual transmitting HIV when their viral load is undetectable is “scientifically equivalent to zero” (Cairns, 2018). Still, as this paper will discuss, Finnish court cases have been consistently discordant with medical knowledge about HIV. Moreover, cases where for instance ‘HIV spitting’ – which is not a mode of HIV transmission – has been criminalized, bring us beyond a medical framing of HIV criminalization to a broader theorization about the Finnish legal sphere.
This research and the interviews in this article were initiated by a legal change to HIV criminalization via a Supreme Court case in September 2021. In this case, the Supreme Court overturned a conviction of assault for a man who had a one-night-stand and didn’t disclose his positive HIV status to his partner – but had used HIV medication and therefore could not transmit the virus. After this legal decision, the influence of the Supreme Court means that disclosure of HIV status has stopped being a legal obligation under the medical frame of having an undetectable viral load. However, HIV criminalization still occupies a legal grey area – it is not fully inevitable that criminal cases, under specific circumstances, could not be brought to trial. In describing these grey areas, Sini Pasanen, director of Finnish HIV NGO Positiiviset ry, has stated that: There are a few rare cases where the viral load does not drop to undetectable levels despite medication – we can’t let it be assumed that they are somehow criminal. But still, this [Supreme Court decision] doesn’t stop anyone from going to make a report to the police. The fact is that the transmission and exposure of HIV is under criminal law – and how we interpret this law is not explicit in criminal law itself. This also means we don’t have a specific part of the law to change. So, to an extent, we’re still having to work with people's images and perceptions. (Kela, 2022)
Nordic exceptionalism and HIV
To understand legal and extra-legal constructions of HIV criminalization in Finland, it must be embedded into the Finnish legal atmosphere's reputation and its history, which are often characterized with the term Nordic Exceptionalism. In its coinage by Anglosphere criminologist John Pratt, the concept of Nordic Exceptionalism describes Nordic countries’ low prison rates and humane conditions of punishment in comparison to other countries. The roots of these conditions are, according to Pratt, to be found in the expansive Nordic welfare network and “highly egalitarian cultural values and social structures in these countries” (2008: 120). The “still quite well-functioning welfare safety net” (Dullum and Ugelvik, 2011: 3) is therefore posited to counterbalance or invert criminal punishment. Further, the given tenets of Nordic Exceptionalism rely on extensive tentacles of assumed social phenomena – they reach assumptions about a cohesive national psyche of egalitarianism, and a particular historical gaze focusing on national unity (Barker and Scharff Smith, 2021). Criminologist and sociologist David Green, quoting Finnish criminologist Tapio Lappi-Seppälä, has connected trust in expertise and legal practice in Finland as connected features characterizing Nordic Exceptionalism: In Finland, ‘for a judge, sentencing is an application of law according to the accepted sentencing principles, and appreciating the valid sources of sentencing law (…)’ (Lappi-Seppälä, 2008: 273). (…) Of course, such a system would be untenable were there not relatively deep reservoirs of trust in expertise and in the courts in the Nordic countries. (Green, 2011: 60)
The current principles of criminal sentencing that Lappi-Seppälä's quote on deep reservoirs of trust in expertise rests on are the result of cross-Nordic penal reforms started in the 1970s (Nuotio, 2012). These reforms decreased rates of imprisonment and have led to the very conditions defined by criminologists as Nordic Exceptionalist. Kimmo Nuotio, in analyzing the work of the Finnish Criminal Law Committee, founded in 1977, has noted the reforms’ “social policy orientation” and the determination that “criminal justice was not regarded as a good vehicle for directing social change” (2012: 84). However, in the 1990s, the emergence of HIV also coincided with what has been termed a ‘punitive turn’ which saw increased and longer sentencing of sexual and violent crimes in Finland (Lappi-Seppälä, 2012) and across Europe (Garland, 2001). Finnish criminal-legal sentencing principles are determined by chapter 6 of the Criminal Code (Lappi-Seppälä, 2012). These sentencing principles, especially after the abovementioned penal reforms, have been characterized by criminologists as rehabilitative, and as minimizing harm (Lappi-Seppälä, 2012), where “the leading principle in sentencing is proportionality between the seriousness of the crime (harm and culpability) and the severity of the sanctions” (Lappi-Seppälä, 2012: 335).
A growing body of Nordic critical criminologists and sociologists have cracked into and complicated the notion of Nordic Exceptionalism by paying attention to the punitive measures affecting – and delineating – those outside its narrative: “Nordic penal regimes are Janus-faced: one side relatively mild and benign; the other intrusive, disciplining and oppressive” (Barker, 2012: 6). On a global scale, critical criminologists have argued that the reputation of Nordic criminal justice and its exceptionalist traits have even “become a fixture in Nordic foreign policy” and soft power (Christensen et al., 2023: 2). The Nordic Exceptionalist assumption of the inverse relationship of welfare and criminal state logics has been criticized through a small body of historical work and studies of prison practices and the criminalization of immigration mainly in Sweden and Denmark (Barker, 2012; Barker and Scharff Smith, 2021; Christensen et al., 2023; Reiter et al., 2017). Barker and Scharff Smith's (2021) work on punishment in Sweden and Denmark details how, while Nordic Exceptionalist views consider the welfare and criminal arms of the state as separate, they share a historical foundation of objectives and mechanisms of control and nation-building. Across modern Nordic history, penal power has gone “hand in hand with welfare state expansion rather than with its retraction” (Barker and Scharff Smith, 2021: 1544).
Relating to imprisonment and penal regimes, Reiter et al. (2017) have noted how Nordic Exceptionalism serves as a ‘rhetorical tool’, failing to reflect the complexities of lived experiences which counter “the aspirational moral high ground of the Scandinavian ideal” (108) in their research on long-term solitary confinement in Danish prisons. Örnlind and Forkby (2022) have deconstructed the uneven patterns of Swedish penal regime growth in the correctional management of gangs in Sweden. Like Örnlind and Forkby's study, this article will aim to respond to Barker and Scharff Smith's (2021) call to capture details in the duality of Nordic Exceptionalism as “equality and freedom for some but not others” (1553).
Critical studies of phenomena that delineate and complicate the narrative of Nordic Exceptionalism have been scarce in Finland, although in other frameworks, anthropological and queer bioethical analyses of trans rights and migrant health rights (Sudenkaarne and Blell, 2022), as well as Indigenous parliamentary and land rights (Lassila, 2024) and the history of Roma rights (Pulma, 2006) have covered the often hushed 2 legal violations of these marginalized groups in Finland. Mulinari and Keskinen (2020) have theorized the Finnish ‘racial welfare state’ through racial profiling of minorities by police, evidencing how “police practices that seek to control the mobility of those defined as the deviant ‘others’ are a central part of the history of the modern state in the Nordic region” (2020: 6). Still, other types of punishment in Finland that do not ‘fit’ into the narrative of Nordic Exceptionalism – such as the harsh criminalization of drug use – have been described as an ‘exception’ (Kainulainen and Hakkarainen, 2021) to the benevolent norm.
The way in which HIV criminalization and narratives of the Finnish legal landscape map onto each other has not been researched extensively. In some of the only foundational research on Finnish HIV criminalization, Kris Clarke (2004, 2011) has studied the moral panic of HIV and the first large wave of immigration to Finland via tensions in policy and media responses to HIV. Clarke has compared the media coverage revealing the identities of (most often Black) ‘HIV spreaders’ involved in court cases between the 1990s and 2015 to ‘criminal mugshots’ and old western ‘wanted dead or alive posters’ (2011: 142). Clarke's work therefore introduces the overlapping or ‘double’ criminalization of already marginalized people that HIV criminalization furthers. Keeping Clarke's seminal work and the tenets of Nordic Exceptionalism as articulated by criminologists in mind, expertise in relation to HIV criminalization will be articulated in the following section. This will allow a discussion on the construction of HIV criminalization in the Finnish legal sphere.
Expertise, the law and HIV criminalization
As extrapolated by Finnish criminologists, trust in expertise is an underlying tenet of Nordic Exceptionalism. This paper does not argue against the idea that there are ‘deep reservoirs of trust in expertise’ (Green, 2011: 60) and authorities in Finland. Empirically, the country has particularly high rates of good relations between the ‘public’ and experts with legal and political authority: institutions such as the OECD and the Finnish Social Insurance Institution have compiled empirical reports on trust in Finnish legal and political administration (Niemelä and Saari, 2013; OECD, 2021). The OECD has qualified that “Finland is a high-trust society” within which “[p]rofound respect for the rule of law jointly with high levels of administrative ethics (…) all contribute to fostering public trust” (16–17: 2021). Instead, I argue that the precise locations of contestation of expertise and authorities – and the phenomena they reflect – end up occupying a strange location, at times hyper-visible; and at times a hidden, publicly ignored or unfathomable ‘threat’. Further, contestations in expertise in criminalized aspects of life are understudied – and can tell us about how Nordic Exceptionalism functions.
In this section, then, expertise in relation to HIV, the forms of expertise related to HIV criminalization as taken on by this study, and their link to each other and to articulations of Nordic Exceptionalism will be unfolded. Expertise – in its various forms and relations to power – has created and contested the social, medical and legal meanings of HIV. Legal scholar Matthew Weait writes how HIV criminalization forces upon people living with HIV a ‘new legal subjectivity’ in addition to an irreversible relation to expertise around HIV (2007: 121–122). McClelland (2019) elaborates on how once a person is “marked as a criminal and a threat to public safety, a wide range of information is produced from authoritative institutions of policing, media, public health and criminal justice” (132) as part of the ‘social sorting process’ that can make people living with HIV hold “a negative relation to the law” (133).
Taking variations of these premises, much of the academic and NGO research on HIV criminalization has rightly focused on those criminalized, including first-hand accounts of its effects (McClelland, 2019). In parallel, medical-legal sociologist Trevor Hoppe, noting how lawmakers, prosecutors, and health officials have shaped the epidemic, has challenged the imaginary of ‘patient zero’ by introducing that of ‘lawmaker zero’ (2018). Despite this plurality of expertise shaping the legal life of HIV, Hoppe notices how “popular discourse on communicable disease control is not filled with images of prosecutors or elected officials” (2018: 203), whereas the guilty ‘patient zero’ exists in popular imaginaries of infectious diseases. I will be responding to Hoppe's ‘plea’ to turn our gaze to figures of legal and criminological authority and expertise.
The lawyers, criminologists, doctors and NGO workers I interviewed are the experts who have defined or challenged HIV criminalization in the Finnish context – but they have varying kinds of authority in making these claims. To begin with, the NGOs’ relation to the criminal courtroom differs from that of the doctors and lawyers I interviewed, who have had different roles both inside and outside criminal trials. Although these NGOs have monitored and worked to counter HIV criminalization, they have had to do this work outside the courtroom. As Sini Pasanen, director of HIV NGO Positiiviset ry, has put it, “trials around the transmission of and exposure to HIV are closed and secret. We don’t know what they talk about in there. It's difficult to go and change anything when we don’t even know what they’ve been discussing.” (Kela, 2022).
In the formal sense, the HIV NGOs I interviewed are involved in roundtable discussions and policymaking on HIV and the law in Finland and across the world. There are two specific HIV NGOs in Finland
The doctors I interviewed have worked around HIV and the criminal courtroom from many angles. These doctors positioned themselves as medical experts almost forcibly thrust into the legal sphere that HIV criminalization has created. 3 Since the mid 1990s, doctors have had a legal obligation to tell their newly diagnosed HIV patients that there is a risk of criminal prosecution if they do not disclose their status to their sex partners, although after September 2021, the legal guidance related to this has changed. 4 Doctors have also given expert statements in HIV-related court cases, sometimes against their wishes. They may have seen their own patients in the courtroom – sometimes on both sides at once. In our interviews, discussing the apprehensions around navigating sexual life with HIV was seen as related to the wider impacts of criminalization, and as an important part of the doctor-patient relationship with patients living with HIV.
Lastly, the lawyers and criminologists interviewed, sometimes holding overlapping roles, have also held the most legal power in directly defining and carrying out HIV criminalization in practice and theory. They have written texts on HIV and criminal law, participated in academic discussions about how to legally respond to the pandemic from the mid-1980s onwards, and worked at law firms that took on the first and most prolific cases related to HIV transmission, exposure, and non-disclosure. Lawyers who have defended the ‘victims’ of ‘HIV spreaders’ fit the application of criminal law to HIV in the most naturalized way, while contact with NGOs led to a more critical response from one criminologist. Importantly, then, within the sphere of legal scholars and lawyers interviewed, stances on HIV criminalization differed.
Multiple legal landscapes were drawn by my informants through HIV criminalization. At this point, it might be seen as a given that contested terrains of legal interpretation exist over new legal issues, even within a Nordic Exceptionalist legal sphere. Digging into why and to what extent HIV criminalization is one such terrain, and what that implies, answers a different set of questions. How do the multiple discrepancies in these experts’ relationships to HIV and criminal law fragment or define Nordic Exceptionalist formulations, and what does this tell us about the normative order underlying these assumptions? As the following sections on the premise of HIV in the criminal courtroom and the case study will detail, trust in expertise and the qualities expected to sit before and behind this trust – cohesive, evidence-based, and responsible use of legal and administrative power – sit in tension with HIV criminalization.
Methods
While criminological formulations of Nordic Exceptionalism tend to unify expertise into a singular basis from which its tenets of egalitarianism, stability, and societal trust expand, medical and legal anthropology dissect such premises in their methodologies. To the anthropological gaze, these formulations – written by legal scholars – beg the question of how such “semistable hierarchies of value that authorize particular ways of seeing and speaking as expert” are naturalized (Carr, 2010: 18). This article takes an interdisciplinary approach and methodology – combining methods from anthropology, sociology and critical criminology – with ethnographic interviews and legal-archival research. I begin by following Valverde's formulation, using a blend of legal anthropology and sociology to engage with “the formation and contestation, within legal arenas, of a certain set of truths – about vice and virtue, normality and indecency (…) in and through the work of state officials, lawyers (…)” (2003: 1) to which I add doctors and NGO employees.
As a premise, legal sociologists have long expressed that law “as a unified phenomenon governed by certain general principles is a fiction” (Rose and Valverde, 1998: 545). Examining power relations and ‘partial truths’ (Clifford, 1986: 6) are the task of these fields. Further, legal sociology and anthropology notice how with the emergence of medico-legal phenomena, a “plurality of different forms of expertise have attached themselves to the institutions and procedures of law”, opening both “a potentially inexhaustible space of disputation” and a dispersed but increasingly tight net of legal controls on already marginalized people (Rose and Valverde, 1998: 545). Similarly, critical criminology aims to expose connections between social injustices or structural inequalities and the criminal-legal system (see e.g., Carlen and Franca, 2019; Lacey, 2016), focusing on the wider harms of criminalization, including in health (McClelland, 2019).
While this methodological approach dissects the arguments made by experts with power, it simultaneously requires me to examine the different set of hierarchies that it may bring to order. As an anthropologist, I have tended towards defining the expertise of NGOs from within a hierarchy of close affinity to the daily lives of people impacted by the wider harms of HIV criminalization, rather than directly through hierarchies of institutional authority. Without having the historical strength, developed and inaccessible technical languages, or the coercive power of the state behind them as the law and medicine do to varying degrees, NGOs nevertheless have a different cultural and institutional authority as experts.
With these framings in mind, in the small field of legal, medical and NGO work around HIV in Finland, I conducted 11 in-depth, semi-structured interviews to view how NGO employees, lawyers, criminologists and doctors have created and contested the social and legal meanings of HIV. With each interviewee, the following broad themes were discussed: the history of HIV criminalization in Finland, justifications used for or against it in the courtroom and in non-legal spheres, the medical evidence used in these cases, as well as the relationship of this evidence to the HIV courtroom. I asked how and why these experts entered this field. I tied together archival research and interviews by directly discussing the cases I researched with my informants, many of whom were involved in them as legal representatives or expert witnesses.
After interviewing NGO employees, I made contact with lawyers and criminologists by following traces from legal archives. Doctors involved in legal cases proved the hardest to find. There were many overlaps and mutual acquaintances in the field. For instance, many had attended the same seminars about HIV and the law in Finland. I therefore managed to get a well-rounded sample of experts involved in the handful of HIV-related court cases known to the public. As the interviews were on a delicate, ethically complex matter, all interviewees were asked for approval for the exact citations used in this article. In two cases, these led to second-round discussions, helping to specify important details shaping the arguments made around the construction or de-construction of HIV criminalization.
I conducted archival research on criminal cases around HIV at the Supreme Court Archives in Helsinki in 2022. From four closely read cases, I chose one which extends beyond those covered by Clarke relating to migration and race (2004, 2011) and into the realm of imprisonment and ‘HIV spitting’, while illustrating discrepancies in expertise over the meaning of HIV and HIV criminalization. Initially, I was looking for signs of how medicine and medical evidence and mentions of HIV saliva and blood appeared in these court documents. I looked for how the ‘threat’ of HIV was mobilized by legal actors. In a similar vein, I read policy documents on HIV, namely the Finnish HIV national strategy papers from 2002 onwards, as well as annual reports of the Global Network of People Living with HIV. While international policy documents supported framing the exceptional state of HIV criminalization in Finland, national ones gave a backdrop to how tensions in medical and legal expertise about HIV criminalization are understood.
The premise of HIV criminalization in Finland
This chapter will analyze expert interview responses to what cultural or legal foundations HIV criminalization was built on. The question of how Finnish HIV criminalization came to be is a legal lacuna: on the one hand, the law is often described as able to take up new phenomena by interpreting them through existing legal cases and working in a self-referential manner (Bernstein, 2016). On the other hand, HIV has not been criminalized universally. To get a sense of how legal actors constructed HIV as a criminal-legal issue, I asked my interviewees to elaborate on the history of HIV criminalization in Finland. “I would argue that previously we’ve never even thought that STIs would lead to criminal investigations … if you’ve gotten one from a partner… although it fits the criteria of assault. Sexual activity – it wasn’t thought earlier that it’d be a relevant area of investigation for crimes against health and life.” (Interviewee 5, criminologist) “If we think about criminology, it was 1995 when my colleague Jussi Matikkala published his book HIV-Infektio, Seksi ja Rikosoikeudellinen Vastuu (HIV infection, Sex, and Criminal Responsibility). He was an expert on offences related to life and health and wrote this widely read book. It's interesting because it was put together in a world and time when HIV was extremely dangerous and where treatment was not yet efficient. So it might just be that this study – and that it was written at this particular time, the first scenario – it might have reflected that our pretrial investigations and our prosecutors’ actions included some very harsh ideas around how these situations of risk of infection should be approached.” (Interviewee 5)
These analogies of violence were vital to the legal maneuver of HIV transmission, exposure, and non-disclosure into the realm of criminal law – they equate HIV with violence via existing legal frameworks, for instance the criminal charge of assault. This legal maneuver has had long-lasting impacts. To another criminologist I interviewed, HIV belonged quite naturally to the sphere of criminal law: “there are many things in these cases that are in the nucleus of criminal law. This problem of HIV also tested many of the things that were thought about crimes against health and life” (Interviewee 6). Far from the everyday realities of living with HIV, especially in the 1990s, this criminologist saw HIV as a potential legal-analytical tool to measure out the validity of ‘other crimes’ under this very broad category within the Criminal Code.
The characterization of HIV in the courtroom took an extra-legal turn with the doctors and NGO employees I interviewed. Some drew directly from Nordic Exceptionalist values to describe it: “… one of the fundamentals behind [HIV criminalization] is this Nordic, assumed, inbuilt sense of trust and its betrayal. Say, if you tell me that you don’t have money then you assume that I believe you, and when that sense of trust is broken, say, if someone hasn’t disclosed their HIV status then the judiciary looks at it from this cultural angle… In this context it's a more offensive, worse thing than in some southern European country in which we might have reacted with – well, that's your bad for believing the other person!” (Interviewee 8, doctor) “Initially, with the arrival of HIV, nobody criminalized anything. (…) The exposure, transmission and non-disclosure of HIV has been criminalized by the Nordic countries, Canada, the US, Australia, and a few other countries.” (Interviewee 1, NGO)
HIV, Saliva, and a Finnish prison cell in 2019
In 2019, the District Court of Pohjois-Savo, located in the middle of Finland in the city of Kuopio, heard a case between a prisoner and a prison officer. While in solitary confinement, prisoner A had resisted getting ‘dangerous items’ (a watch and a necklace) removed from him by prison guards. During this confrontation, prisoner A had spat at the forehead of prison officer B. At the same time, prisoner A had ‘verbally threatened’ prison officer B by saying he had HIV. The Supreme Court summary of this District Court case states how A's saliva had visible blood, and how his awareness of the blood meant that he had intentionally attempted to transmit HIV to the prison officer. The demands for compensation revolved around prison officer B's ‘long-term uncertainty’ around possible contraction of HIV and his months-long medical follow-up after the incident. In response, A's legal representatives reiterated in the District Court that A did not have HIV, hepatitis, or any other infectious diseases. Despite this, and the fact that HIV does not transmit through spitting blood onto intact skin, argumentation around HIV and its ‘threat’ carried on in court proceedings, which lasted a total of three years. Prisoner A's spit landing on the forehead of prison officer B, the blood in the spit, and his awareness of the blood were repeated, foundational facts to be taken seriously in measuring the degree of violence of the occurrence, traveling from the District Court to the Appeals Court and into the Supreme Court.
The District Court sentenced the prisoner to 10 extra months in prison for violently resisting a public official on the basis of his ‘HIV spitting’ and two other counts of violence. The summary of the trial states that the prison guard and witnesses – other prison guards – had a consistent and believable story of the events, and that the legal criteria of violently resisting a public official was fulfilled. Prisoner A then complained about the legal outcome – and the case was taken to the Appeals Court, which lowered his sentence to impeding a public official, and saw that four additional months in prison was an adequate sentence for his crimes. After a complaint by prison officer B over the lowered sentence, the case was taken to the Supreme Court in 2021. Ultimately, it was decided that the Appeals Court decision would be kept. The Supreme Court summary weighed in on whether spitting itself constitutes violence – it was understood not to – and whether verbally threatening someone about transmitting HIV was violence – it was not seen as such.
A similar case was taken to the Finnish Supreme Court around 20 years earlier, in 1999, in which a prisoner living with HIV was charged with five attempted murders by spitting at and scratching prison officers during a confrontation in his cell (KKO:1999:102). The Supreme Court decision on the case charged the man with resisting a public official and three attempts of aggravated assault. The Supreme Court decision summary states how the risk of transmission was too low to endanger the officers. Still, two decades later, the theoretical ‘threat’ of HIV transmission from a prisoner to a public official was discussed in analogous terms – in this case, without the prisoner having HIV at all. How did the ‘threat’ of a doubly fictitious HIV transmission (this prisoner didn’t have it; and even if he did, it would not transmit through spit onto a forehead) become a legal reality to be taken seriously in Finnish courtrooms for three years?
On medical argumentation and HIV criminalization
Understanding the elusive position of medical argumentation in this case is necessary to begin to answer the above question. In the publicly available case summary, medical understandings of HIV transmission were not mentioned. This gives the impression that the ‘threat’ of HIV in this case was seen solely through the lens of the criminal code – asking whether this ‘threat’ fulfills the legal notion of violently resisting a public official. However, in the case archives, notions of medical knowledge were employed in, for instance, the complaints of the lawyer of prison officer B over the Appeals Court decision to lower A's sentence. The complaint states how “in relation to HIV transmission, it is known that the virus is transmitted through broken skin or mucous membranes. According to literature, HIV transmission can theoretically occur through the retina of the eye” (District Court of Pohjois-Savo, 2019). In most of the case archive, however, HIV as a medical matter seems nearly sidelined, keeping known medical facts around HIV vague.
To get a further sense of the different ways in which medical evidence has been employed in the HIV courtroom more generally, I ended up directly asking each interviewee about what medical evidence in the courtroom looks like, who provides or presents it, and what the relationship between medical expertise and the law is seen to be in these cases. Surprisingly, ‘HIV saliva’ and police became somewhat of a recurring theme: “And then maybe five years ago in Joensuu… someone who had spat at a police officer which is of course rude, but the police had immediately gone to an HIV test … and so five years ago it obviously wasn’t clear to the police that this isn’t a risk … I mean it doesn’t transmit even by kissing. So this knowledge [of how HIV can and cannot be transmitted], when it comes to groups other than professional healthcare workers and HIV specialists … it's still quite bad.” (Interviewee 2, NGO employee) “Then there was this case, it came from somewhere outside the capital region, but they’d asked me for a statement, and it was very unclear what had happened. I wanted to know exactly what had happened so I could consider risk analyses – but then it became apparent that someone had spat at a police officer (…) in the end it turned out that he had spat at the officer's foot, and I asked whether the officer had shoes on, and well, he did. Then I said that I believe this matter has been handled.” (Interviewee 8, doctor) “It became clear to me that the legal praxis around HIV criminalization is quite inconsistent – the expertise used in these cases can be quite random. (…) There hasn’t been a sense of coordination here (…) maybe they haven’t been able to get a Helsinki University Hospital or Finnish Institute for Health and Welfare specialist to some countryside region.” (Interviewee 5) “I think that Finland is very behind on this. I don’t understand how we can have a judicial system that doesn’t believe in scientific research. That's neatly what this is about. … the entire scientific community is behind the fact that HIV doesn’t spread if you’re on medication – and yet we haven’t seen this fact being taken into account in criminal cases in Finland.” “Although the degree of criminal punishment has eased, exposure to HIV has been charged and prosecuted also in cases in which response to treatment means there is no real risk of transmission. The police and judiciary should be given contemporary information about HIV transmission.” (Liitsola, 2017: 32)
This unacknowledged gap between the medical and legal lives of HIV is a significant point to pause on. We see how in the 2019 case, medical evidence around HIV intertwines with ideas of state security in an inseparable manner to form the legal life of HIV. As Valverde (2003) reminds us, scientific ‘truths’ coexist with ‘nonscientific facts’ in legal arenas (18) and these ‘truths’ ‘transmute’ into legal formats and frameworks, showing “the ways that law shapes the world that it then claims to adjudicate” (6). To this legal interviewee, in seeing medical expertise on HIV as correct and unchanging in the courtroom, and as supporting legal cases about harming the health and life of non-HIV positive individuals in a straightforward way, HIV is a legal object. As much as HIV criminalization cases rest on medical evidence – in this case, the ‘theoretical transmission’ of HIV – they are not about medicine. In the Finnish context, medical evidence around HIV transmutes into a legal object used to delineate non-belonging to the Nordic Exceptionalist narrative. This has been, as explored in the section on the premise of HIV criminalization, the work of legal and criminological expertise, which, as Nordic Exceptionalist formulations themselves posit, are particularly strong and unified in the Finnish sphere.
The idea that authorities ‘should be given’ contemporary information perpetuates “the view that those who are suffering from a transmissible disease are legitimate objects of state regulation” (Weait, 2007: 20) in the form of criminal punishment. As this court case so clearly indicates, the use of ‘theoretical transmission’ as a medico-legal category speaks to how the authority of medicine can be transmuted by legal actors to form part of the Nordic Exceptionalist ‘social sorting process’. It points us to the underlying assumptions around people living with HIV as an example of the ‘paradigm other’, and to national security as entwined with health as part of both Nordic welfare state-building and forms of criminal punishment. Therefore, the next section on HIV and experts with affinity to criminal law and punishment (in light of the non-inevitability of HIV in the courtroom) turns the analysis towards an extra-medical view of HIV criminalization, and the boundaries of Nordic Exceptionalism.
Authorities and the legal life of HIV
I brought up this case with my legal interviewees to get a sense of the ‘threat’ of HIV when transmission is practically impossible. Interviewee 6, criminologist: Of course, people want to avoid any additional risk with regards to that (…) so it can be used as a tool – a little bit like if someone goes to the bank with a toy gun. So enacting a threat that isn’t real … but of course, a pistol and HIV, scratching or biting has a difference, but this is the thought. J: I was left wondering what imaginaries of HIV this case had, because it's known that there haven’t been almost any known cases of HIV transmission through saliva. In what way do you see this image of the ‘threat’ of HIV in this case, that's an interesting gun metaphor… Interviewee 6: Well, compared to a toy gun the difference is that with a real gun you can get more done than with HIV transmission. But the idea that you’re threatening someone with something non-existent is the same, and this decision is probably influenced by the idea that people want to be certain about things, and to avoid any possibility (…) Interviewee 7: So, if someone on a dark street comes to you and says I’ll slice you if you don’t give me your wallet, well, how many people would think – well, let's wait and see if you have that knife or not, and I’ll only decide afterwards whether or not I give you my wallet. It's the same thing here – if someone spits at a police officer, and the perpetrator says he has HIV, there's no other choice than to prepare that this is the case, get tested, and with enough negative tests, get released from worry. J: Yeah, I think that at some stage in the case it was stated that spitting at someone isn’t a way to transmit or contract HIV. Interviewee 7: Well, let's just say that, even with a small possibility it's humane to prepare (…). Even though the risk of transmission is small, a responsible person would of course behave in a way that would not endanger anyone close to him.
There is a link between the way police and prison guards are embodiments of the state and state security, and the way these officials have been seen as aggravating actors in HIV criminalization. Academics critical of HIV criminalization in the UK have recognized the manifold, active role that police and other authorities working around criminal law have had, on the whole, on the criminalization of HIV, paying attention to how it exemplifies that “there are worthy and unworthy complainants, there are worthy and unworthy experiences of risk” (Nicholls and Rosengarten, 2019: 33). In one sense, HIV has acted as a ‘signifier of the risks’ (32) police and adjacent positions of power, prison guards included, undertake in their work to reproduce normative social order (Neocleous, 2000). In Finland, trust in authorities like prison guards, judges and police has allowed for HIV to become and stay a criminal-legal object rather than a social fact.
This case indicates how the invisible hierarchization of expertise underpins the uneven distribution of ‘non-criminalizing’ Nordic Exceptionalist lawmaking. Legal authorities – the police, prison guards, prosecutors, lawyers and judges have authority over medical evidence, and in this case, NGO groups working directly with people living with HIV. This stance naturalizes HIV criminalization and reveals the authoritative makings of Nordic Exceptionalism. This criminologist and lawyer reiterated the inseparable, two-fold matter of the ‘slightest’ risk of violence towards the accuser – and that of the ‘HIV prisoner’ as a carrier of this potential violence. Again, the criminal-legal sense of theoretical risk is wrapped in medicine but without correspondence to medical ‘reality’ in any way. Spit and blood with (fictional) HIV are analogous to the (toy) gun and (potential) knife. Moreover, the prisoner, assumed to be possibly living with HIV, can be seen as the ‘paradigm other’ (Weait, 2007) on two different fronts, while prison guards and police officers hold paradigm positions of authority, especially in the context of Finland – with its widely accepted Nordic Exceptionalist trust in expertise with authority. State experts delineating belonging through punishment and violence – managers of inequality (Purnell, 2020) – have had the power over other forms of expertise to define HIV transmission in relation to Finnish law.
Discussion and conclusion
Existing scholarship dissecting the tenets of Nordic Exceptionalism lays open the uneven distribution of Nordic criminalization and welfare. In this case, relating to the prisoner and person assumed to be living with HIV as a doubly marginalized figure, this article specified how such uneven distributions can be narrated, justified, or challenged by medical, legal and NGO experts. Through this, the article also offers one answer as to why HIV criminalization has been overrepresented in Finland.
The legal geographies of HIV criminalization drawn by these different experts were plural, and contestations emerged. On the one hand, letter bombs (on a case written in 1994) and stabbing someone with a knife in the dark (commentary in 2021) are analogies of violence that have readily extended themselves to legal understandings of HIV in the eyes of some criminologists and lawyers who have worked in the Finnish context of HIV criminalization. On the other hand, those with proximity to the widespread harms of HIV criminalization have fought these images and their consequences. Akin to work by critics of Nordic Exceptionalism, a critical analysis of the legal life of HIV through those who enact or counter it shows how the dimensions of Nordic Exceptionalism are limited – with “equality and freedom for some but not others” (Barker and Scharff Smith, 2021: 1553).
In one sense, the fragmentation of expertise and evidence in the HIV courtroom – as well as the global map of punitive legal culture to which HIV criminalization attaches Finland, also fragments the assumptions of Nordic Exceptionalist lawmaking and culture. Seemingly, the parameters of this legal sphere rely on these ‘outside’ cases to define itself. Phenomena, bodies and behaviors that fall outside the narrative of Nordic Exceptionalism see it collapse, creating boundaries. However, the case discussed in this article complicates the legal-sociological position of Nordic Exceptionalism further. Varying narratives of widespread public trust in experts with authority – the police, the judiciary, and other state bodies with the power to criminalize – can work to naturalize violations produced by these authorities towards different minority groups in Finland, including people living with HIV and prisoners. This in turn can sideline the way criminal law and the courts reproduce underlying normative values and exclusions from the Nordic Exceptionalist narrative.
In the case described, HIV criminalization acted as an arena in which to reaffirm the authority of criminal-legal actors through the Nordic Exceptionalist state embodied – the prison officer as ‘a person before the law’. The state embodied as prison officer was seen to be legitimately threatened by the image of HIV, with the heavy contrast that trusted criminal-legal authorities and people ‘living in negative relation’ to the law have in Nordic legal and social spheres. Competing forms of expertise around HIV criminalization have been able to challenge its premise, but in this case, could not withstand the weight of the punitive hierarchies in expertise upholding Nordic Exceptionalism, inscribing legal authorities with the power to criminalize fictional HIV.
Legal and archival sources
District Court of Pohjois-Savo (2019) Case R 18/2424.
Finnish Criminal Code. Available at: https://finlex.fi/fi/lainsaadanto/saadoskaannokset/1889/eng/39-001
KKO:1999:102. Supreme Court Decision 1999:102. Available at: https://finlex.fi/fi/oikeuskaytanto/korkein-oikeus/ennakkopaatokset/1999/102
Footnotes
Acknowledgments
I thank my supervisors Salla Sariola and Mikko Jauho for comments on much earlier drafts of this paper, as well as my interviewees for their time and insights.I thank all students and scholars who have taken a stand for Palestine and against genocide.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This article was developed with funding within the CrimScapes: Navigating Citizenship through the European Landscapes of Criminalisation research project financially supported by the NORFACE Joint Research Programme on Democratic Governance in a Turbulent Age, and co- funded by the National Science Centre, Poland and the European Commission through Horizon 2020, under grant agreement No 82216.
