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

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 barebacking, along with the broader casting of the judiciary as sexual custos mores. It will argue that the present heteronormative legal and cultural framework largely reflects a focus upon the ‘good gay’, de-sexed and constructed within a rights discourse, in contrast to Stychin's ‘bad queer’, sexual and defiant of a narrow heteronormative rights agenda, and embracing ‘unsafe’ and ‘deviant’ sexual practices. This article seeks to move the analysis of the criminal law on from the doctrinal debates that have dominated thus far, and onto a more theoretical exposition of the criminal law regarding barebacking as erotic play.