Sex, HIV and the Sex, HIV and the LawLaw

Bebe LoffBebe Loff

Monash UniversityMonash University

Commonly held viewsCommonly held views

A public health approach to HIV is A public health approach to HIV is better than a criminal approachbetter than a criminal approach

There should be no offences that There should be no offences that are specific to HIVare specific to HIV

Traditional argumentsTraditional arguments

A public health approach should be A public health approach should be adopted to respond to HIV because it :adopted to respond to HIV because it : Is not aimed at punishmentIs not aimed at punishment Is less stigmatising Is less stigmatising Will support an environment in which those Will support an environment in which those

who may be affected feel comfortable about who may be affected feel comfortable about coming forward for assistance coming forward for assistance

Will promote safer sexual practiceWill promote safer sexual practice Is consistent with the message that people Is consistent with the message that people

must take responsibility for their own sexual must take responsibility for their own sexual health health

Is more likely to curb the spread of the diseaseIs more likely to curb the spread of the disease

Take home message:Take home message:Understand the Understand the realities before realities before making blanket making blanket statements.statements.

Public health powers Public health powers and approaches are and approaches are not necessarily not necessarily benignbenign

'Risky' HIV carriers to be reported

“The Age” 25 July 2007

The nation's health ministers decided on the policy change yesterday at a meeting in Sydney.Victorian Health Minister Bronwyn Pike said doctors would only have to report HIV-positive people they believed had deliberately infected others or may intentionally infect others with the virus.“Mandating doctors to tell the Health Department is one way of us being able to have a good public safety approach."Ms Pike said the issue had become of concern more recently, and while there were protocols in place with the police "which would probably pick up this group of people anyway", the initiative added an extra layer of reporting "to make sure nobody goes under the radar".

“The Age” continued

"We would agree with that approach where it's very clear to the doctor that the person is intending to infect somebody else," Mr Baxter said.But Robert Niemann, a spokesman for Liberty Victoria, criticised the move as a "major and obvious attack" on patient-doctor confidentiality.Dr Jonathan Anderson, a Carlton doctor who treats HIV-positive patients, said clinicians already understood the need to balance their prime responsibility for patient confidentiality with wider public health."I don't believe there's been any problems with the way doctors have reported cases to health departments, rather there have been problems within health departments," he said.

Recent eventsRecent events

Westminster systemWestminster system ““Detention”Detention”

Asylum seekers (Illegal non citizens)Asylum seekers (Illegal non citizens) Criminal justiceCriminal justice Political intentionsPolitical intentions

When I first arrived When I first arrived at the Health at the Health DepartmentDepartment

Powers under the Health Powers under the Health Act Act

Compulsory examination and Compulsory examination and testing (including the option for testing (including the option for consecutive 72 hour periods of consecutive 72 hour periods of detention if the person refuses to be detention if the person refuses to be tested)tested)

Compulsory counsellingCompulsory counselling Restrictions on behaviour or Restrictions on behaviour or

movementsmovements Isolation and detentionIsolation and detention

Isolation ordersIsolation orders 121 (12) 121 (12) If, to enforce the order, the medical If, to enforce the order, the medical

officer finds that it is necessary to arrest the officer finds that it is necessary to arrest the person to whom the order relates, the medical person to whom the order relates, the medical officer may obtain the assistance of any member officer may obtain the assistance of any member of the police force to do so.of the police force to do so.

(13) For the purposes of arresting a person under (13) For the purposes of arresting a person under subsection (12), the medical officer may with any subsection (12), the medical officer may with any assistance that is required- assistance that is required-

(a) enter any premises; and (a) enter any premises; and (b) (b) use any force that may reasonably be use any force that may reasonably be

necessarynecessary.. (15) A person who acts in reliance on an (15) A person who acts in reliance on an

authorisation of the Secretary under subsection authorisation of the Secretary under subsection (11) is not liable to any civil or criminal action for (11) is not liable to any civil or criminal action for so acting, whether or not there was any defect in so acting, whether or not there was any defect in the authorisation. the authorisation.

Partner Notification Partner Notification OfficersOfficers

Are wonderful people and we are Are wonderful people and we are lucky to have the particular lucky to have the particular individuals …individuals …

But have insufficient legal authority But have insufficient legal authority to do what they do and must rely on to do what they do and must rely on bluff – (authorised officers under the bluff – (authorised officers under the Health Act 1958)Health Act 1958)

HIV Advisory PanelHIV Advisory Panel

Has no legal authorityHas no legal authority Meets in privateMeets in private Provides advice to the Chief Health Provides advice to the Chief Health

Officer who may accept or ignore Officer who may accept or ignore the advicethe advice

How are powers How are powers exercised?exercised?What processes are What processes are adopted?adopted?How is evidence How is evidence tested?tested?How does a person How does a person under suspicion under suspicion respond to the case respond to the case against them?against them?

What sort of What sort of enforcement enforcement mechanisms are mechanisms are there?there?Who does the Who does the enforcing?enforcing?Where is isolation to Where is isolation to take place, and for take place, and for how long?how long?(Charlene?)(Charlene?)

How much is known How much is known about what happens about what happens by those other than by those other than the cognoscenti?the cognoscenti?What might we be What might we be able to discover if we able to discover if we went looking?went looking?

The value of non- The value of non- HIV specific HIV specific offencesoffences

“HIV on Trial”

Sally Cameron, HIV Australia Vol 5 No 4

The recent Criminalisation of HIV transmission in Europe report[5], which aims to be a ‘starting point’ for understanding the issues and trends involved, reveals that at least 36 of the 45 European countries surveyed had legislation making the actual or potential transmission of HIV a criminal offence. Fourteen of those countries had HIV-specific legislation, while the others applied general criminal law. At least one person has been prosecuted in each of 21 European countries, with more than 130 convictions for exposing or transmitting HIV recorded Europe-wide.[6]  A large majority of convictions (around 90 percent) were applied to alleged transmission during consensual sex.[7]

What the article does not What the article does not mentionmention

Austria, Sweden, Switzerland, Denmark, Finland, Austria, Sweden, Switzerland, Denmark, Finland, Netherlands Norway – have the greatest number Netherlands Norway – have the greatest number of prosecutionsof prosecutions

Finland, Slovakia, Sweden - countries with the Finland, Slovakia, Sweden - countries with the highest ratio of prosecutions/PLWHAhighest ratio of prosecutions/PLWHA

Austria, Finland, Sweden, Switzerland – convicted Austria, Finland, Sweden, Switzerland – convicted over 60% of the total number of people over 60% of the total number of people

NS Austria, Finland, Sweden, Netherlands, NS Austria, Finland, Sweden, Netherlands, Norway, Norway,

S DenmarkS Denmark ? Switzerland 26 Cantons? Switzerland 26 Cantons While non specific approaches to offences are While non specific approaches to offences are

supposedly less stigmatising, there seems to be supposedly less stigmatising, there seems to be a paradoxical outcome. a paradoxical outcome.

CRIMES ACT 1958 - SECT 19A CRIMES ACT 1958 - SECT 19A Intentionally causing a very Intentionally causing a very serious diseaseserious disease

19A. Intentionally causing a very serious 19A. Intentionally causing a very serious disease (1) A person who, without lawful disease (1) A person who, without lawful excuse, excuse, intentionally causes another intentionally causes another person to be infectedperson to be infected with a very with a very serious disease is guilty of an indictable serious disease is guilty of an indictable offence. Penalty: Level 2 imprisonment offence. Penalty: Level 2 imprisonment (25 years maximum). (2) In sub-section (25 years maximum). (2) In sub-section (1) "very serious disease" means HIV (1) "very serious disease" means HIV within the meaning of the Health Act within the meaning of the Health Act 1958. 1958.

HEALTH ACT 1958 - SECT 120 HEALTH ACT 1958 - SECT 120 Offence of infecting other Offence of infecting other personspersons

(1) A person must not (1) A person must not knowingly or knowingly or recklesslyrecklessly infect another person with an infect another person with an infectious disease. Penalty: 200 penalty infectious disease. Penalty: 200 penalty units. (1 penalty unit = $110.12)units. (1 penalty unit = $110.12)

(2) In any prosecution under this section it (2) In any prosecution under this section it is a defence to prove that the person is a defence to prove that the person infected with the infectious disease knew infected with the infectious disease knew of and voluntarily accepted the risk of of and voluntarily accepted the risk of being infected with that infectious disease. being infected with that infectious disease.

Consequences of Consequences of defaulting on a finedefaulting on a fine

A warrant to arrest may be issuedA warrant to arrest may be issued A court may in lieu of a fineA court may in lieu of a fine

make a community based ordermake a community based order make an order that the person be make an order that the person be

imprisonedimprisoned order that property be seizedorder that property be seized

CRIMES ACT 1958 - SECT 17 CRIMES ACT 1958 - SECT 17 Causing serious injury Causing serious injury recklessly recklessly

A person who, without lawful A person who, without lawful excuse, recklessly causes serious excuse, recklessly causes serious injury to another person is guilty of injury to another person is guilty of an indictable offence. Penalty: Level an indictable offence. Penalty: Level 4 Imprisonment (15 years 4 Imprisonment (15 years maximum). maximum).

What does the criminal What does the criminal justice system offer?justice system offer?

Complaint made to policeComplaint made to police Investigation – collection of evidenceInvestigation – collection of evidence Search warrants ordered by a CourtSearch warrants ordered by a Court Consideration of evidence by the Office of Consideration of evidence by the Office of

Public ProsecutionPublic Prosecution Committal, TrialCommittal, Trial Burden of proof –”Beyond reasonable Burden of proof –”Beyond reasonable

doubt”doubt” Finding of guilt or acquittalFinding of guilt or acquittal Sentence of determinate lengthSentence of determinate length

ConclusionsConclusions

We require just systems from all We require just systems from all arms of governmentarms of government

One should not blindly favour One should not blindly favour “public health” approaches without “public health” approaches without knowing what they entail knowing what they entail

The criminal law has a placeThe criminal law has a place