The HIV/AIDS Legal Centre has called for strong Australian guidelines on HIV transmission and criminal prosecutions, to ensure only the most extreme cases end up before the court.

The trend towards criminal prosecution over HIV transmission is of growing concern across the globe, according to HALC’s principal solicitor Brady, who has called for stringent guidelines to be put in place for the Director of Public Prosecutions.

“This is a new area and there is a vacuum of policy for the DPP, in deciding whether to prosecute criminally,” Brady said, pointing out that Australia lagged behind nations like Britain, which has policies in place.

“We would generally agree with the position that only the most extreme and serious cases of deliberate infection of another person should be charged,” he said, adding that he did not see this case as the best example to set a precedence in NSW law.

“Would it set the bar too low? Yes. It is a terrible situation, but it doesn’t sound like the worst, most extreme case, that should be prosecuted in the criminal jurisdiction,” he said. He argued that criminal action should be reserved for situations where it could be shown an individual was repeatedly and intentionally infecting others.

He had fewer concerns over moves to resolve the matter through civil proceedings though.

“We are generally more comfortable with remedies lying in civil proceedings, where someone can get  compensation from the person who infected them — if they did so in a negligent or reckless way.

“Being in a civil jurisdiction, it takes a lot of the stigma and the heat out of the process. It remains between two parties, as opposed to a process where the state is prohibiting or sanctioning behaviours, and attempting to put a penalty on someone.

“[Criminal prosecution] is a very blunt tool, and not a good tool for making effective behavioural changes.

“This is a highly stigmatised disease, and our public health policy encourages engagement and openness to get tested, access treatment and practise self-care and care for others. It moves against stigma.

“Criminal sanctions move towards discrimination and stigmatisation. It discourages engagement with services, due to fear of criminal action.

“It takes two parties to make decisions about safe sex, and how to negotiate sex — public policy encourages people to negotiate that carefully without the risk of harm to one another.

“The criminal law seems to ignore that and it reduces one party to a helpless victim and the other party to a wilful perpetrator.”

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