Earlier this year, a Queensland man was found not guilty of intentionally infecting his former girlfriend with HIV. The case was sent back to the District Court to determine a sentence for the lesser charge of grievous bodily harm.
At the time of the decision, the not-guilty finding was both welcomed by advocates who see criminal prosecution as reflecting the stigma of the condition, and criticised by others who consider the criminal law an appropriate sanction for harm caused.
On the one hand, health authorities are keen to combat the spread of HIV. It is therefore regulated under public health provisions across the country.
In Queensland for example, HIV is a 'controlled notifiable condition'. As such, both HIV positive and HIV negative people have responsibilities. HIV positive people must not recklessly put someone at risk of contracting the notifiable condition, and HIV negative people must take reasonable precautions to avoid contracting the condition. Penalties apply, but the point is that management of the condition and its spread is framed as a public health strategy.
In contrast, the criminal law exists as a form of punishment for breaching established norms, and to deter criminal acts. On this argument, a person — such as the man found guilty of grievous bodily harm — should be held accountable for that harm.
This is troublesome though for offences concerning HIV. For example, the criminal law is known to do a poor job at policing sexual behaviour. Such laws require the state to peer into people's intimate relations — not as a question of health, but for the purpose of a potential prosecution and public hearing. For 'notifiable conditions' this may require police investigation of multiple partners, even those who are not complaining of an offence.
Of additional concern, criminal laws may deter people from being tested for HIV. If they are not tested, and therefore do not know that they have the condition, then they may avoid falling foul of the law. However this also increases the likelihood of transmission, as people cannot possibly take appropriate precautions if they do not know they are infected.
This effect, arising from a fear of prosecution, directly contradicts the public health objectives of disease management. In a further argument against criminal laws, the stigma of HIV makes HIV-infected people vulnerable. This community would make an easy target for law enforcement, potentially infringing their human rights.
"One of the challenges facing the criminal law in this field is staying abreast of the rapidly evolving science around HIV and its transmission and ensuring it takes account of only the best available evidence."
There are various types of criminal law around Australia that are relevant to HIV — although not all are based upon the science of its transmission. For example, some states have legislation requiring mandatory testing of a person accused of spitting at a police officer. The testing is to establish whether the accused has a blood born virus. Advocates point out that this perpetuates the myth that spitting might transmit HIV — where in fact the risk of transmission is practically zero in almost all circumstances. Indeed, no transmission by biting or spitting has ever been recorded in Australia.
As long as HIV remains a focus of criminal law, in particular in light of the ongoing stigma of HIV-positive people, it remains important to use this law judiciously. One of the challenges facing the criminal law in this field is staying abreast of the rapidly evolving science around HIV and its transmission and ensuring it takes account of only the best available evidence.
To this end, the Medical Journal of Australia recently published a consensus statement on HIV and the law, authored by a number of leading clinicians and scientists. The authors outline the current knowledge about HIV transmission and treatment, together with recommendations for management of the spread of the virus. For example, the latest evidence shows that the risk of transmission through sexual encounters between partners who have different levels of antibodies 'can be low, negligible or too low to quantify'. The statement points out further, that in most cases public health management is preferable to prosecution.
Victoria repealed its HIV-specific criminal laws in 2015. Advocates have welcomed this as a move towards using a public health framework to ensure the health of the HIV-positive person and the rest of the community. With World AIDS Day almost upon us, the tenor of this latest consensus statement adds to the argument for reform, providing a basis for all states and territories to consider effective, just, and evidence-based approaches to management of HIV.
Kate Galloway is a legal academic with an interest in social justice.
1 December is World AIDS Day.