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Keeping up with Queensland HIV law
A recent Brisbane court case involving an HIV-positive man has once again raised the question of how Queensland’s legal system handles the issue of unsafe-sex and disclosure.
While sensitive community discussions regarding personal responsibility continue, the law has a definite view on who is responsible for disclosure.
The Public Health Act states that a person must not recklessly put someone else at risk of contracting a notifiable condition and the Criminal Code Act says that it is a crime to intentionally transmit a serious disease with intent to do harm.
If someone is accused of transmitting HIV intentionally to the other sexual partner, the accused could be charged with grievous bodily harm, and imprisoned.
“There are two different laws here. One is a public health law which is designed to ensure there is no transmission of disease and the other is to do with assault where there is an intentional infection,” lawyer Stephen Page told the Star Observer.
Under the Public Health Act, Queensland Health has power to manage people who they see as being a risk to public health, which includes people who may be recklessly exposing others to HIV.
The two offences of recklessness and intent carry very different prison sentences with 18 months for recklessness and life imprisonment for cases of intent. Whilst both can be complex to prove depending on the case and evidence, proving intent to transmit HIV can be a very difficult and sensitive issue.
Queensland HIV law differs from other states in that only in cases involving unsafe-sex and if a condom breaks, the positive partner who is aware of his status must disclose it. In the eyes of Queensland law in cases of unsafe-sex, the onus is on the HIV positive partner to disclose his status.
In the case of criminal prosecution for HIV transmission, consent by the negative partner to knowingly accept the risk of HIV infection, in voluntarily not practicing safe sex or using condoms after disclosure of status by the HIV-positive person, is not likely to be used as a defence under criminal law
Knowledge or consent by the negative partner is not a defence to a charge of grievous bodily harm. However, knowledge or consent in non-criminal cases may be able to be raised depending on the circumstances of each case.
Queensland Association for Healthy Communities and Queensland Positive People have the shared belief that everyone has mutual responsibility to look after their own health as well as the health and well-being of sexual their partners.
They also share an opinion that in cases not involving infection by intent, fraud, and recklessness, criminal prosecution isn’t an effective public health intervention and can add to the stigma and negativity that already exists around the issue of HIV.