The criminalisation of HIV
Broadcaster Doug Pollard will lead a discussion on the increasing number of HIV transmission cases before the courts on JOY FM this Saturday. We look at the key arguments that will be put forward.
THE HIV SECTOR
All pleasure, no responsibility?
by MICHAEL WILLIAMS DAVID MENADUE & PAUL KIDD
Picture these vignettes: an orgy is taking place at your friend’s house in Fitzroy. It is something of a wild night; condoms are not used but drugs are and the HIV status of each person has not been discussed.
Across town in South Yarra, two guys stumble home after a big night out: alcohol was consumed and so were pills. Lots of them. They fuck unprotected. HIV status was not discussed.
A quieter evening takes place in Footscray: a man living with HIV, who is yet to fully accept his status, is excited to be dating again after a long period alone and battling depression. He still lacks confidence but, with counselling, has talked himself into going out. After dinner, he and his date have sex but HIV is not mentioned, such was the ambivalence about his condition and the exuberance both of them felt as they hugged each other in bed.
Across town again, in Collingwood at a sex-on-site premises, two guys have just entered a stall after meeting three minutes before. Having spent almost 30 minutes there without luck they are excited and immediately have unprotected, penetrative sex. It was fun and they left the premises separately. Beyond saying hello, and giving each other a quick, approving glance at the end, nothing was discussed.
These scenarios are fictional but they could easily be real-life situations in which sexual intercourse occurs between a person living with HIV (‘PLHIV’) and a person not living with it. Can we state confidently, in any of them, that a criminal investigation and trial of the PLHIV for either the exposure to, or transmission of the disease, is fair?
According to a new paper commissioned by the Australian Federation of AIDS Organisations on criminalisation by Sally Cameron, Victoria records the highest number of criminal trials in the country of individuals accused of exposing, or transmitting, HIV to another person.
Most of these cases would occur in the contexts described above. Most would also likely involve PLHIVs who have been managed by officers from the Department of Health, under the Guidelines for the Management of People Living with HIV Who Place Others at Risk to encourage them not to sleep unprotected with others. In most cases, and with counselling and support, these processes achieve their desired goal.
It is important to keep in mind that the public health framework is not benign and can result in detention if conduct is not modified.
Aside from the exceptionally rare cases where an individual intentionally tries to infect another with HIV, both VAC/GMHC and PLWHA Victoria supports the management of individuals under a public health model.
How do organisations such as ours respond to the increase in cases? We need to first establish clear guidelines on when a matter is to be handled by the Health Department and when police should investigate. Currently, an individual can be subject to the processes of both agencies, causing huge burden and distress.
The ideal is enforceable guidelines that stipulate that, before the police become involved, Health Department processes are allowed to run their course. These guidelines should also state that, only after a period of time when an individual refuses to modify their behaviour and there is a prime facie case they are trying to harm others, would the police intervene.
Most positive men do use condoms with partners of negative or unknown status. But that’s not newsworthy, and media coverage has focused on a small handful of exceptional cases, fuelling a stereotype that divides our community and makes disclosure even harder for positive men. Sex is a mutual act, and negative men should not rely on punitive laws to threaten positive men with prosecution.
About the authors: Michael Williams is president and David Menadue vice-president of the Victorian AIDS Council/Gay Men’s Health Centre. Paul Kidd is president of PLWHA Victoria.
VICTORIAN HEALTH DEPARTMENT
Guidelines in place
There are well established processes in place in Victoria for the management of a person who may put others at risk of HIV infection.
by BRAM ALEXANDER
The Guidelines for the Management of People Living with HIV who put Others at Risk is a five-stage process that aims to encourage people with HIV to change behaviour that is risking the spread of HIV.
It starts with measures such as counselling, education and support, through to legally binding public health orders.
These orders are only used if it appears that the person fails to voluntarily change their behaviour and continues to put others at risk.
The Chief Health Officer can make a legally binding order the person is required to comply with; the aim is to reduce the risk of HIV transmission in the community.
Orders can be made only if the Chief Health Officer believes the person has HIV and a reasonable attempt has been made to inform them about HIV; there is a serious risk to public health related to the person’s behaviour; and the person must undertake certain actions or avoid certain behaviours to reduce the transmission risk.
A person who does not follow an order could be fined more than $14,000 and risk escalating management to a higher and more restrictive stage.The guidelines are available at www.health.vic.gov.au/chiefhealthofficer/guidelines-risk-hiv.htm
An independent international review of the measures in place to respond to and monitor people who are at risk of recklessly spreading HIV to others found that Victoria’s guidelines and protocols are consistent with world’s best practice.
The international review conducted by Canadian HIV expert and Chief Medical Health Officer for Vancouver Coastal Health in Canada, Dr Patricia Daly, found the management of these cases in Victoria were appropriate and strike the right balance between protection of individual rights and the protection of the community.
About the author: Bram Alexander of the Victorian Health Department writes on behalf of Chief Health Officer Dr John Carnie.
info: Michael and David will appear on JOY 94.9FM on March 12 between 5-7pm to discuss HIV and criminalisation.
And aim to get a petition signed to criminalise hiv transmission in this country. I am so tired of seeing dirty “bastards” getting off for infecting women. We need a new constitution along the similarities of the USA to enforce prosecution and a disciplinary hearing for when someone does not tell their , his/her HIV status to a potentially uninfected partner before a sexual encounter is started provided that person in question asks and even if the person infected stipulates protection, that is still not enuff to protect that person. IF the person in question is aware of his/her HIV status as I am sure they would be because there is a huge hiv awareness campaign in Canada due to outstandingly high HIV infection rate disproportionate to the rest of the world except India.
Any say on this would be appreciated. Getting tired of the old misogynist’s “law” that is so anti-women, biased and devalues women and their health/contribution to society as a whole.
The militant AIDS activists are only pro the criminalisation of HIV transmission due to the fact that they are infected, but what about us, the uninfected, we need a new law to protect us too !!!
But would it not do wonders to halt this disease in its progress and prevent a whole new population from getting infected.
Can we get a petition started to protect women’s rights and men’s rights too.
David Menedue and his ilk are part of the AIDS industry – anything say has to be taken with a slight bias..
Anyone who deliberately puts others in harms way (Exposure to HIV/AIDS) should be prosecuted to the full capacity of the law.
So many people consider this to be an ‘either or’ situation – counselling or jail. It is not that simple. People make choices, yes – both good and bad. Both active and passive partners. But to suggest that EVERYONE knows the risks, and NOONE has ‘intent’ by virtue of active decision or reckless abandon, is just too easy. My understanding is that the cases before the courts are where an individual has reported to POLICE their belief that someone has intentionally attempted to transmit the virus. This has nought to do with the Department of Health. This, as in other situations, is an individual’s right to report to police. The Department has programs, as mentioned, for assisting with managing certain cases according to strict guidelines. I for one, should I EVER be deliberately put at risk by another, would liek the chance for legal recourse, if for no other reason than to protect my dear friends (those of who are still with us)
People need to be responsible for their actions……..is it not as simple as this????
on graduating from acting school, a person I knew went out to celebrate with other students. after drinks and whatever they ended up in an apartment, shooting heroin from the same needle. The poor lovey never got to have sex before he knew he was HIV+, and after that he lived the life of a saint and died.
If ever there was a gay catholic martyr to hate and disease it was he, and counselling only reaches those who want it. the person I knew got counselling from Oprah and Tony Robbins; because politically no one had there act together to help him, and that was yesterday for me.
With respect to Paddy’s views here, I don’t think anyone was ever put in jail for passing on Swine Flu or Chicken Pox. Of course there is a difference between those diseases and HIV but at least we know how to protect ourselves from HIV. If people agree to expose themselves to risk and make flawed assumptions about another’s status, they must take some responsibility for that as must their positive partner. But is jail an appropriate response for the positive partner- when our article above explains the success of counselling and other interventions in turning around most people’s behaviour? Some 30% of new infections in Victoria are estimated to come from people who don’t know their HIV status — there is only one sure way to protect yourself and it’s not from locking others up. It’s by using a condom and lube with others where HIV status is unknown.
If you go into a bank to rob it with a gun with no bullets, its still a crime. When someone knowingly goes and spreads disease to an unknowing recipient, its has to be a crime – regardless of what situation it is.
I pose the question – if someone had Chicken or Swine Flu and knowing passed it on to you, wouldn’t you want some recourse from that person? Wouldn’t you want that person to be restrained from passing it onto other people in the general public or would you rather just say, well, its my fault for not asking?
People have to be held responsible for their actions! Not a lot of that happens these days.
If we say that an individual is responsible for their own health; and what goes in and out of their bodies is a person’s choice.
Then not disclosing is a choice. And in not disclosing, a person cannot be fully responsible for their own health; or that they leave a portion of their responsibility to themselves, to luck and chance.
So when you don’t disclose, or you don’t ask about the other person, you are waiving the right to sue for damages; because you are leaving it up to luck or chance, in my opinion.