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Public health solutions to managing HIV

  • 29 November 2016


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