WHAT is the role of the law when it comes to dealing with HIV? Are people living with HIV required to disclose their HIV status before having sex, or is practicing safe sex enough? If someone engages in risky sex, have they committed a crime?
You’d think the answers to these questions would be straightforward, but they’re far from it. Lots of people, positive and negative, are unsure of their obligations under the law.
The media image is often one of a malicious predator who either sets out to infect others or acts with reckless disregard for others’ safety. But in reality, the vast majority of HIV criminal law cases involve people who never intended to pass on the virus but rather acted carelessly, foolishly, or out of fear of rejection.
Not long ago I met a young man who had recently been charged with serious criminal offences. He came to Living Positive Victoria for support at a time when his life was in disarray because he had been accused of placing another person at risk of HIV. I’ll call him Simon, although that isn’t his real name.
Simon had a couple of sexual encounters with another guy; they hadn’t discussed HIV at first, but after Simon chose to disclose his HIV-positive status, the other guy reported him to the police. Simon was charged with “attempting to intentionally cause a very serious disease”, a crime that carries a maximum penalty of 25 years’ jail.
The charges were eventually dropped, but by then Simon’s name and suburb had been published in the media. Because of this, hen was harassed by his neighbours and had to move out of his public housing apartment. He no longer felt safe going out on the gay scene because he had been hassled and called an “AIDS predator”.
He was homeless, no longer felt supported by his community, and was facing a lengthy prison term – all because of a misguided sexual encounter. His accuser never contracted HIV.
Simon’s story shows how easily someone’s life can be destroyed by a criminal prosecution. Simon admitted the sex had not been safe, but he hadn’t acted with malice and indeed, he voluntarily disclosed his status after the event to enable the other guy to access PEP.
The section of Victoria’s Crimes Act that Simon was charged under – section 19A – is Australia’s only HIV-specific criminal law. It was introduced in 1993, ostensibly to respond to the threat of so-called ‘syringe bandits’ who might use blood-filled syringes during robberies, despite there never been a robbery in Australia using an HIV-infected syringe. In fact, 19A has only ever been used in cases of sexual transmission, and despite dozens of charges having been laid over its 20-year history, only one person has ever been convicted.
There is an alternative to the criminal law: all Australian states and territories have well-developed public health processes that can be triggered when HIV transmission occurs or there is an allegation of risky behaviour. The processes enable people to make behavioural changes that minimise risk. In the vast majority of cases, counselling, education and support is all that is needed, but if necessary, health authorities can use more coercive measures including public health orders and even detention.
Criminal law processes have been criticised internationally because they provide a disincentive to knowing your HIV status – instead of protecting people from HIV, they actually have a negative impact on prevention. In September, UNAIDS recommended that criminal prosecutions should only occur where HIV transmission actually occurs and where it can be shown that the accused intended to transmit HIV. The report also condemned the use of laws that criminalise non-disclosure of HIV status, such as those in NSW and Tasmania, and HIV-specific criminal laws, such as Victoria’s section 19A.
Section 19A regards to an act of violence using HIV as more criminal than other, sometimes more harmful, acts. In Victoria, a person who assaults another, causing permanent brain damage or physical disability, would typically face a maximum penalty of 20 years’ jail, but someone who deliberately transmits HIV could face 25 years. In 1993, that extra penalty was supposedly justified on the basis that the victim would almost certainly die. In reality, it was a reaction based on hysteria about HIV at the time, and it continues to perpetuate the stigmatising idea that HIV infection is fundamentally more damaging than other diseases or injuries.
Australia has a proud record as a leader in the response to HIV, but our laws have not kept up. We need nationally-consistent laws that treat HIV as a health issue, reserving criminal processes for those cases where criminal intent can be shown. Laws that mandate disclosure or exceptionalise HIV are wrong and should be repealed.
Paul Kidd tweets under @paulkidd
HIV LAWS AROUND AUSTRALIA
Disclosure laws require HIV-positive people to disclose their status before sex; two states (NSW and Tasmania) have this requirement, although in NSW it is now a defence if the sex is safe.
In Victoria, HIV-specific criminal laws treat HIV transmission as a separate crime with a higher penalty.
Other criminal laws have been used against people with HIV in most states and territories. These include assault/causing injury/grievous bodily harm laws; laws against endangering others; administering poisons; and sexual offences.
There have been at least 36 people charged for HIV exposure or transmission in the last two decades, and about half of those cases have led to guilty verdicts. Victoria has had the highest number of prosecutions (19), but there have also been criminal cases in NSW (4), Queensland (4), South Australia (7) and Western Australia (2).