Sex, HIV and the Law

1. Sex, HIV and the Law Bebe Loff Monash University

2. Commonly held views • A public health approach to HIV is better than a criminal approach • There should be no offences that are specific to HIV

3. Traditional arguments • A public health approach should be adopted to respond to HIV because it : • Is not aimed at punishment • Is less stigmatising • Will support an environment in which those who may be affected feel comfortable about coming forward for assistance • Will promote safer sexual practice • Is consistent with the message that people must take responsibility for their own sexual health • Is more likely to curb the spread of the disease

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

5. Public health powers and approaches are not necessarily benign

6. '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".

7. “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.

8. Recent events • Westminster system • “Detention” • Asylum seekers (Illegal non citizens) • Criminal justice • Political intentions

9. When I first arrived at the Health Department

10. Powers under the Health Act • Compulsory examination and testing (including the option for consecutive 72 hour periods of detention if the person refuses to be tested) • Compulsory counselling • Restrictions on behaviour or movements • Isolation and detention

11. Isolation orders • 121 (12) If, to enforce the order, the medical officer finds that it is necessary to arrest the person to whom the order relates, the medical officer may obtain the assistance of any member of the police force to do so. • (13) For the purposes of arresting a person under subsection (12), the medical officer may with any assistance that is required- • (a) enter any premises; and • (b) use any force that may reasonably be necessary. • (15) A person who acts in reliance on an authorisation of the Secretary under subsection (11) is not liable to any civil or criminal action for so acting, whether or not there was any defect in the authorisation.

12. Partner Notification Officers • Are wonderful people and we are lucky to have the particular individuals … • But have insufficient legal authority to do what they do and must rely on bluff – (authorised officers under the Health Act 1958)

13. HIV Advisory Panel • Has no legal authority • Meets in private • Provides advice to the Chief Health Officer who may accept or ignore the advice

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

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

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

17. The value of non- HIV specific offences

18. “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]

19. What the article does not mention • Austria, Sweden, Switzerland, Denmark, Finland, Netherlands Norway – have the greatest number of prosecutions • Finland, Slovakia, Sweden - countries with the highest ratio of prosecutions/PLWHA • Austria, Finland, Sweden, Switzerland – convicted over 60% of the total number of people • NS Austria, Finland, Sweden, Netherlands, Norway, • S Denmark • ? Switzerland 26 Cantons • While non specific approaches to offences are supposedly less stigmatising, there seems to be a paradoxical outcome.

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

21. HEALTH ACT 1958 - SECT 120 Offence of infecting other persons • (1) A person must not knowingly or recklessly infect another person with an infectious disease. Penalty: 200 penalty units. (1 penalty unit = $110.12) • (2) In any prosecution under this section it is a defence to prove that the person infected with the infectious disease knew of and voluntarily accepted the risk of being infected with that infectious disease.

22. Consequences of defaulting on a fine • A warrant to arrest may be issued • A court may in lieu of a fine • make a community based order • make an order that the person be imprisoned • order that property be seized

23. CRIMES ACT 1958 - SECT 17 Causing serious injury recklessly • A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. Penalty: Level 4 Imprisonment (15 years maximum).

24. What does the criminal justice system offer? • Complaint made to police • Investigation – collection of evidence • Search warrants ordered by a Court • Consideration of evidence by the Office of Public Prosecution • Committal, Trial • Burden of proof –”Beyond reasonable doubt” • Finding of guilt or acquittal • Sentence of determinate length

25. Conclusions • We require just systems from all arms of government • One should not blindly favour “public health” approaches without knowing what they entail • The criminal law has a place