AIDS AND THE SEXUALITY OF LAW: IRONIC JURISPRUDENCE

Vol. 16 No.1 (January 2006), pp.68-70

AIDS AND THE SEXUALITY OF LAW: IRONIC JURISPRUDENCE, by Joe Rollins. New York: Palgrave Macmillan, 2004. 256pp. Hardcover. $45.00. ISBN: 0312240066.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Burgess [at] ohio.edu

In AIDS AND THE SEXUALITY OF LAW, Joe Rollins explores the jurisprudence of various federal appellate cases from 1985 to 1995 that address AIDS in a wide variety of contexts including adult theaters, blood donation, and prison administration, as well as litigation successfully brought by people who are HIV positive. Relying on various authoritative narratives, especially from science, Rollins argues that these cases are notable not only for what they say, but also for what they fail to say about sexuality. Purportedly scientific authority is wielded in these cases to assert that AIDS is solely a gay disease that can be effectively contained if deviant sexuality is adequately disciplined by law. Drawing heavily on queer theory, Rollins’ analysis of these cases offers a compelling account of an interesting set of outcomes, and a fascinating explanation of the political constitution of sexuality.

Rollins’ opening chapter explains several tenets of queer theory, such as the heterosexual-homosexual binary, the instability of identity, the role of the closet in constructing authoritative knowledge, and the role of irony in understanding and challenging such constructions. In subsequent chapters, Rollins applies these insights to the aforementioned cases. Through these cases, Rollins reveals the utility of academic queer theory for understanding the politics of the law of AIDS. Even though the judicial scripts vary widely, Rollins persuasively unites these cases into one coherent conceptual structure which he calls “ironic jurisprudence.”

In many of the cases that Rollins examines, the apparent solidity of heterosexual identity is shown to be ironically dependent on the identification of homosexuality with AIDS. This identification is rather shaky because the cases often depend on questionable scientific knowledge about AIDS and its transmission, along with the closeting of more challenging and reliable information about the virus. For example, in the blood donation cases, gay men with AIDS are constructed as active, spreading the virus to unsuspecting heterosexuals by polluting the donated blood supply, dirtying needles, or working as nurses on unknowing patients. Homosexuals are implicated in carrying AIDS by virtue of their sexual identity and risking the spread of the disease to heterosexuals who would otherwise appear to be risk-free.

In the adult theatre cases, Rollins argues that laws upholding regulation in the name of public health erroneously mark “alternative” sex as a cause of AIDS, thus serving to further closet homosexuality while fostering a positive construction of heterosexuality. [*69] Although border patrol tactics of surveillance and identification of patrons actually do nothing to promote public health, they do serve to further the illusion that homosexual identity is per se dangerous. Homosexuals are materially disadvantaged in these cases, while the privileges and benefits of heterosexuality, such as privacy and invisibility, are protected.

In cases dealing with prison administration, Rollins suggests that the desire to maintain the illusion of complete and unbroken power in prisons is more important than admitting that sex regularly occurs, along with the attendant risk of AIDS. Even when the Court concedes in one case that a prisoner has been sexually abused in prison, such violence and its consequences for the possible transmission of AIDS are constructed as unique. Because sex challenges the power of the prison, its existence must be denied outright. In this context, a negative construction of homosexuality is not as necessary. The practice of sexuality more generally is rendered invisible.

Finally, Rollins presents several case scenarios depicting homosexual identity as more stable than in the cases discussed in previous chapters. Gay men with HIV are humanized through compassionate narratives of self-determination and mortality. Interestingly, where homosexuality is more stable, the power of the state is more flexible. Accordingly, even though HIV-positive litigants are generally successful here, these cases allow the courts to expand state power significantly, an ironic conclusion if ever there was one.

Thus, Rollins calls for us to embrace his construction of “ironic jurisprudence.” He notes that the irony connotes instability and flexibility, while jurisprudence is often associated with stability and order in law. Irony compels one to note the contingency of meaning and the contestability and negotiation present in judicial narratives. Thus, even though AIDS is consistently portrayed as a gay disease, health effects are typically maximized in the cases dealing with heterosexuals who are HIV-positive, and minimized in those dealing with gay men who are HIV-positive. Accordingly, Rollins concludes that “what is preserved most assiduously in these materials are social privileges, hierarchies of institutional and political power and identity categories” (p.150). He argues that irony can serve as a kind of lightness in the face of such contradiction, promoting contestation and the possibility for change. Where jurisprudence seeks to stabilize, irony offers laughter in the face of power and domination, serving as a survival strategy which, ironically, is even more useful as the situation becomes increasingly grim.

This book is quite impressive in several ways. It is the most comprehensive work on AIDS, sexuality, and case law that I have come across. It is theoretically sophisticated, yet a compelling read. No mean feat for any political scientist, this achievement is particularly impressive in Rollins’ case, as he is dealing with the interesting and [*70] provocative, yet notoriously abstract and jargon-filled area of queer theory.

Rollins’ book makes an important contribution to the queer theory literature for understanding the politics of law and sexuality. “Mainstream” Political Science has only recently begun to recognize queer theory as an important part of political theory but remains reluctant to integrate its insights into interpretive and empirical work. This lag may be due to fact that, when queer theory broke into the academy in the early 1990s, much of it came out of the humanities and was rooted in psychoanalytic theory and literary criticism. However, as political scientists such as Elizabeth Wingrove and myself have more recently noted, the work of Judith Butler and other founders of queer theory may have significant import for the study of political authority and institutions. Rollins is well on his way to establishing himself as a leader in this effort.

REFERENCES:

Burgess, Susan. 2006 (forthcoming). “Queer (Theory) Eye for the Straight (Legal) Guy: Lawrence v. Texas’ Makeover of Bowers v. Hardwick.” 59 POLITICAL RESEARCH QUARTERLY.

Wingrove, Elizabeth. 2000. ROUSSEAU’S REPUBLICAN ROMANCE. Princeton: Princeton University Press.

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