HIV advocates have welcomed the outcome of a High Court appeal related to the application of criminal law about HIV transmission, which will support future advocacy for the development and implementation of prosecutorial guidelines.

On Wednesday this week the High Court handed down a decision that it could not be proved Godfrey Zaburoni intended to transmit HIV to his former partner.

The case, which was an appeal to a 2013 verdict handed down in a Queensland court, establishes that if a HIV-positive person has sex with someone without condoms, it cannot be inferred they intended to transmit HIV.

The ruling has been hailed as a landmark in HIV advocacy, as the issue of intent has never been determined in a court at this level worldwide.

“The judgment is a significant advance, and helps to resolve the difficulty that there is no one ‘applicable criminal law standard’ across Australia and the test for the intentional transmission of HIV to a sexual partner has been a source of uncertainty,” said Alexandra Stratigos, the Sydney-based HIV/AIDS Legal Centre (HALC) solicitor representing Zaburoni.

In 2013, Zaburoni was found guilty of “intentionally transmitting a serious disease” and sentenced to an imprisonment of nine years and six months. An appeal to the Queensland Supreme Court that same year was also unsuccessful.

HALC then filed an appeal in the High Court on behalf of Zaburoni to determine if his verdict was unreasonable.

“This [High Court] decision is important as courts are recognising that the criminal system is not the place to deal with this, as there are good public health protocols in place to help people through these issues,” Queensland Positive People (QPP) president Mark Counter said.

“However, there still is place for criminal law, someone stabbing someone with an HIV positive needle or someone declaring I’m going to infect everyone I can.

“This case, however was dealing with the complexity of two people in the privacy of their own bedroom.”

Although there are allegations that Zaburoni may have lied, it was not proven that he intended the infection to occur. Repeated national surveys have found the vast majority of people living with HIV would never want to transmit the virus to others.

“Where you’ve have two people trying to negotiate sex and throw in an HIV infection, the number of complexities rises dramatically,” Counter said.

“Besides the normal power dynamics, personality issues, and egos present in any relationship, HIV introduces the added fears of discrimination, prejudice and stigma.

“As well as in some cases, pre-existing mental health, alcohol and drug issues sometimes linked to the diagnosis itself. There’s a cocktail of things in the minds of people trying to negotiate safety.”

In 2007, a Swiss report said there was evidence of people with an undetectable viral load as having a low risk of being able to transmit the virus to others.

Last January, the same authors of that paper said they have not seen a single case of a transmission occurring where a person achieved an undetectable viral load.

“The medical opinion around the world is changing and the courts haven’t caught up,” Counter said.

“The public health goal is to get people stabilised and get them onto treatment. If someone doesn’t know someone’s status, both have an equal responsibility for safety — everyone is responsible for their own health as much as relying on someone else to disclose a positive status.”


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