What the law says about HIV

Stanislas Kanengele-Yondjo was sentenced last week to 12 years’ jail for infecting two women with HIV. Gay men comprise 80 percent of the people with HIV/AIDS in Australia, so it raises questions about what this case means for this group of people.

The first thing it means is a person who harms another person by deceiving them about whether they have a disease commits a crime and can expect to go to jail for a long time. Stanislas Kanengele-Yondjo had unprotected sex with his victims by lying to them about his HIV status. As PLWHA (NSW) said, his behaviour was indefensible.

Does the decision mean you can go to jail for failing to disclose your HIV status? Yes, if you know you have HIV and you have unprotected sex and your partner does not consent to the risk of infection and contracts HIV. No, if you take precautions to avoid the risk of transmission whether your partner knows you have HIV or not. Probably no, if your partner consents to the risk of transmission.

The problem in NSW is the law and public health policy say two different things. The Public Health Act makes it an offence with a maximum fine of $5,500 to have sex with a person without disclosing you have a sexually transmissible medical condition and if your partner does not accept the risk.

There is no defence of taking reasonable precautions. The government’s HIV/AIDS policy, on the other hand, promotes behavioural prevention where sex might be risky for HIV. For gay men, that means using a condom every time, whether you know the HIV status of your partner or not.

Most public health experts think that an HIV prevention policy based upon disclosure is a recipe for disaster. It is likely that many of the 820 new HIV diagnoses recorded in Australia in 2004 have happened because people with HIV don’t know they have the virus. And yet this has occurred in a country with a culture among gay men of taking precautions -“ using a condom or reducing risk in other ways.

If we replace that with a policy of depending on people to tell their partner if they have HIV, what happens with the many people who don’t know they are HIV positive? In other words, disclosure policies are dangerous. They also don’t work -“ almost no-one has been prosecuted under the Public Health Act for what gay men do every day: have sex without asking about their partner’s HIV status but using condoms for anal sex.

What about transmission offences? The UN’s International Guidelines on HIV/AIDS and Human Rights say there is no need for any country to have laws targeting people with HIV -“ existing criminal laws are adequate for people who deliberately or recklessly harm others.

Criminal laws especially about HIV transmission are bad public health policy. They divert attention from the real need, for people with or at risk for HIV to change the way they have sex or inject drugs. And they increase the stigma surrounding HIV, making people reluctant to be tested and reluctant to address the HIV risk in their lives.

A typical illustration of HIV stigma was the words the judge who sentenced Stanislas Kanengele-Yondjo used to describe his HIV infection -“ your horror. Kanengele-Yondjo’s horror was his immoral behaviour, not his HIV status.

The bottom line? Don’t be distracted by the rare criminal cases. What we need is to get tested regularly and to make sure we actually do protect ourselves and our partners from HIV and other STIs.

David Buchanan SC is a barrister and secretary of ACON. However, the views he expresses in this article are his own.

THE SITUATION OVERSEAS

The Stanislas Kanengele-Yondjo case is a NSW first, but it reflects an apparently growing international trend of criminal prosecutions for HIV transmission.

In October, a New Zealand court dismissed charges against an HIV-positive man who met a woman on the internet and did not tell her his HIV status before they had protected sex.

The judge in that case found Justin Dalley was not liable because he had taken reasonable precautions against transmission by using a condom for vaginal sex, and by not ejaculating during unprotected oral sex.

The evidence was that, as far as public health needs are concerned, the steps necessary to prevent the transmission of HIV can be met without the requirement for disclosure, Judge Susan Thomas ruled.

In Europe, at least 130 people have been convicted for transmitting HIV or exposing someone to the virus, according to a UNAIDS-funded report released in June.

Austria and Sweden had recorded the most convictions, with more than 30 each, the report said. In Switzerland, where at least 20 convictions have been made, there was some evidence same-sex prosecutions were growing, perhaps because of the anti-gay prejudice of lawmakers in some areas.

The vast majority of convictions related to transmission during consensual sex, Aidsmap.com reported, and about half of them involved gay male sex.

Imprisonment was the standard punishment, but some countries also used deportation. The report highlighted stigma against HIV-positive people as one possible consequence of prosecutions.

English courts have convicted at least four men for recklessly inflicting grievous bodily harm after they infected sexual partners with HIV, Aidsmap.com reported.

Among them is Mohammed Dica, whose case bears similarities to Kanengele-Yondjo’s.

Dica, a Londoner, was convicted of grievous bodily harm in March and jailed for almost five years after convincing a female partner to have unprotected sex with him and infecting her with HIV, BBC News reported. It is unclear whether Dica told the woman he was HIV-positive.

One-legged German man Hans-Otto Schiemann frustrated Thai officials last year by boasting he had had unprotected sex with hundreds of women and girls in Thailand’s north, Agence France-Presse reported.

Thai police said they had no power to charge Schiemann over the alleged infections; instead they deported him for overstaying his visa.

Of various US defendants, perhaps the most flagrant has been Anthony Whitfield, who was sentenced to more than 178 years behind bars last December for deliberately exposing 17 women to HIV.

Authorities said up to 170 people could have been subsequently exposed to HIV because of Whitfield’s behaviour, Associated Press reported.

-Ian Gould