“These laws paint us firstly as some sort of villain to be avoided, and create a culture of stigma and fear around dealing with, and sleeping with, and getting into relationships with people living with HIV.”
By
Simon Copland, Liam Elphick

29 Sep 2017 - 3:26 PM  UPDATED 29 Sep 2017 - 3:26 PM

The criminalisation of HIV transmission is, yet again, facing renewed public debate. Recently, the New South Wales Parliament passed a law requiring that individuals with a ‘sexually transmissible disease’, including HIV, must take ‘reasonable precautions’ to prevent the spread of their condition. This replaces the old NSW provision requiring individuals to disclose any STIs to sexual partners before intercourse, with punishment for breaching the new laws increasing to a maximum fine of $11,000, with the now added threat of up to six months imprisonment. Further, the new law does not define what ‘reasonable precautions’ actually means, resulting in potential confusion over its implementation.

While this law, and others in Australia, apply to other conditions beyond HIV, historical stigma associated with HIV and the perceived severity of HIV compared to other diseases render these laws particularly applicable to HIV positive individuals.

1. The new NSW laws: part of a harrowed history

While the increased punishment for STI transmission - including HIV - is surprising, it’s not the first time that laws relating to HIV transmission have drawn controversy. In fact, the criminalisation of HIV transmission and exposure has a long and harrowed history. SBS Sexuality spoke with Nic Holas, the founder of the Institute of Many, who explains:

“You can pinpoint the origin of most HIV specific law or laws that relate to the spread of HIV or people living with HIV all the way back to the AIDS crisis. The reasons for that are many, but for the most part it was an awful time of fear and misinformation across the entire country.”

Since that time, HIV transmission and exposure has been criminalised in Australia in two main ways: under criminal laws, and under public health laws. Even though many of the older and harsher laws have been repealed, criminalisation still exists across the country.

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2. Criminal laws: intentional transmission of HIV

No criminal laws in Australia specifically target HIV transmission, after Victoria in 2015 repealed the offence of intentional transmission of HIV . Instead, criminal laws operate in a more general way: by applying assault-based offences or offences against the person to situations where an HIV positive individual has transmitted the disease to another person and thereby caused ‘harm’.

These criminal offences usually only apply where an HIV positive individual intentionally transmits HIV to another. One key exception is that Victoria, South Australia and the Northern Territory allow prosecutions for mere exposure, but again, it usually must be intentional.

3. Public health laws: unintentional transmission of HIV

Public health laws, however, vary significantly across Australia and can apply to far broader situations: in particular, unintentional transmission of HIV. Public health laws in South Australia, Western Australia, Victoria, and the Northern Territory do not contain offences against the transmission or exposure of HIV, but either contain general principles about preventing the spread of certain diseases and/or make it an offence to cause a ‘material risk to public health’.

The other four states and territories do, however, criminalise the transmission and exposure of certain types of diseases, including HIV, under public health law even where this may be done unintentionally. Applying this to HIV, this would include where an HIV positive person acts merely negligently, carelessly, or without any knowledge or significant fault at all.

While New South Wales now has a ‘reasonable precautions’ offence for STIs, the ACT, Queensland and Tasmania all criminalise the transmission and exposure of the more broadly termed ‘notifiable diseases’, which includes HIV. In applying these ‘notifiable disease’ offences to HIV:

  • The ACT makes it an offence to not take ‘reasonable precautions’ against transmitting HIV;
  • Queensland criminalises conduct that recklessly puts others ‘at risk’ of contracting HIV; and
  • Tasmania can imprison HIV positive individuals for up to 12 months if they do not take ‘reasonable measures and precautions’ to prevent the spread of the disease or if they knowingly or recklessly place another person at risk.

None of these laws require HIV to have actually been transmitted to another person in order to charge an HIV positive person with an offence.

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4. Why criminalising unintentional HIV transmission doesn’t work

A report from the World Health Organisation on laws such as these found that the criminalisation of unintentional HIV transmission increases stigma around HIV, and reduces incentives for people to get tested and treated. This, as Holas explains, directly contradicts good public health policy:

“They place an unshared burden of responsibility entirely and squarely onto the positive person, which is counter intuitive to what we know about really effective public health policy.”

“Just as much as we want to be empowering HIV positive people, and people living with STIs, to disclose their status openly to potential partners, we also really need to be empowering, educating HIV negative people to learn the right questions to ask.”

This increased stigma also has major impacts on people living with HIV.

“These laws paint us firstly as some sort of villain to be avoided, and create a culture of stigma and fear around dealing with, and sleeping with, and getting into relationships with people living with HIV,” Holas explains.

“And when we impact on people's ability to form meaningful relationships we close them off from parts of society. And that's how we see people with HIV trapped in negative, dark spaces.”

It is for this reason that HIV advocates have opposed the new laws in NSW. While the Bill has now passed, Holas explains that advocates will still be seeking more clarification on its impacts, in particular on how the term ‘reasonable precautions’ will be defined.

In the meantime, he says that we need to be wary about a renewed push for legislation such as this in the future. New laws requiring mandatory testing for those who spit on first responders are already creating cause for concern, raising the prospect that we are facing a new wave of regressive legislation targeting people with HIV. After years of progress, this is something we should be concerned about.