Complicating cure

The latest article from our project investigating the experiences of people treated for hepatitis C engages with the challenges posed by laws and policies devised in a pre-cure world. The project has focussed on better understanding the factors that impact the lives of people with (a history of) hepatitis C and changes that have occurred since the advent of highly effective and tolerable cures. Given the law and legal frameworks have the potential to reinforce or alleviate disease-related stigma and discrimination, they are a particularly relevant site for consideration.

In a mapping of historical cases that deal substantively with hepatitis C, we found a strong focus on criminal cases. Our new article article, ‘Complicating Cure: How Australian criminal law shapes imagined post-hepatitis C futures’, published in Sociology of Health & Illness, explores how hepatitis C features among them, including before and after the advent of new treatments. It asks:

  • How has the criminal law approached hepatitis C historically?
  • Has the advent of new treatments changed the way the criminal law imagines the virus and its subjects?
  • And what are the implications of the criminal law’s approach to the virus for an imagined, transformative, post-hepatitis C future?

One of our key findings was that hepatitis C is routinely and repeatedly constituted as a serious and disabling disease within criminal case law, despite the advent of effective cures. In doing so, the law steadfastly maintains its own approach to disease, disability and illness, untouched by medical and scientific developments.

As the article sets out in more detail though a close examination of cases, this happens in a range of ways. For example, hepatitis C can be an aggravating factor when the offending occasions an assumed risk of transmission to a victim, but it can be a mitigating factor when it impacts the health and wellbeing of the offender with hepatitis C. In sentencing, hepatitis C can figure as a source of symbolic horror and shame for victims in ways that can operate symbolically and materially to their detriment and has led to the more merciful sentencing of offenders. Additionally, we find that the distinction between infection (sometimes referred to as the ‘injury’) and disease (having chronic infection that might lead to serious illness if left untreated) is consistently blurred in law or rendered irrelevant for the purpose of legal assessments, sentencing and compensation.

The construction of hepatitis C as serious and stigmatising in criminal cases is underscored by another key feature of the case law: silences regarding the advent of new treatments. Drawing insights from Bruno Latour’s work on law’s role in world-making (2013; 2009), we found that the biomedical significance of new treatments is of little consequence under criminal law. Reflecting on one particularly important case about how hepatitis C is to be thought about in the era of direct-acting antiviral treatments, our analysis found that the law is

undeterred by the advent of these treatments … [and] law has made no significant revision to the way it conceptualises the virus. Instead, the criminal law continues to allow for and indeed concretise a view of both potential exposure to and acquisition of hepatitis C as inherently ‘serious’.

There are a number of reasons why these findings matter. For one, the law has the power to shape public understandings of hepatitis C infection, including how people with the virus understand themselves and their ability to avoid the stigma associated with it. As the law continues to present the virus as inevitably dangerous and serious, despite the advent of cure, people who have hepatitis C, or have been exposed to the virus, may continue to be ‘enrolled’ into a discourse in which hepatitis C is serious, significant and shameful.

You can read the full article here.

Citation: Seear, K., Mulcahy, S., Kagan, D., Lenton, E., Fraser, S., Valentine, K., & Farrugia, A. (2022). Complicating cure: How Australian criminal law shapes imagined post-hepatitis C futures. Sociology of Health & Illness, 1– 17.