Unlawful intentions

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Post by Adrian Ogier03 Mar 2011

The only thing that stands out about all the HIV cases in the news at the moment is how different they all are.

Admittedly all the accused are men, but that’s about it. Two are African-born, the others are not. Some are heterosexual, but not all. Some involve multiple partners, others a single relationship.

There are two cases in South Australia. One concerns a man charged with exposing more than one woman to HIV. Another involves a man charged with sex with underage girls.

Queensland has the ‘HIV acrobat’, a man purported to having had sex with hundreds of women but who is currently facing charges of infecting one person only.

In Victoria, there is one case involving a man charged with trying to infect another with HIV. There is also a case concerning a person accused of having unprotected sex with one woman and on the same day sexually assaulting another.

In New South Wales, there is a case of an HIV transmission occurring in a gay relationship where the accused lied about his status. Prior to it becoming a criminal case, his former partner brought civil action against the accused and won damages.

There is not much joy to be found in following these stories. They involve the sorts of things we don’t like to think about... denial, risk, irresponsibility, shame.

But why these cases? How come they have ‘got up’ when there must be others where disclosure didn’t happen, where unprotected sex did and where transmission occurred? What drives some prosecutions and not others?

Sally Cameron, an HIV law consultant, believes that this arbitrariness in the application of Australia’s criminal laws, across jurisdictions, is unacceptable.

She’s not the only one who thinks so. In 2008, UNAIDS recommended that states issue guidelines to limit police and prosecutorial discretion in application of criminal law e.g. by clearly and narrowly defining ‘intentional’ transmission.

Whether a case gets up or not is often based purely on whether the police officer who takes the initial complaint believes it is worth pursuing. And judging by the sort of cases that are hitting the headlines they tend to be more sensational, rather than clearly involving ‘intentional’ transmission.

In Australia, cases continue to be pursued against individuals who have intended to have unprotected sex in the absence of any suggestion their aim was to transmit HIV.

Unless clear legal and criminal policy guidelines are developed, the risk is that everyone involved, including the legal system, will continue to be swayed by the emotional nature of a case rather than it meeting a set of criteria.

The process won’t be simple. It will need to involve public health officials and legal officers, community and government, informed by behavioural and scientific research, banding together to formulate a sophisticated response. It will require us to study the differences across our various state and territory legislations to arrive at and support a nationally consistent procedure.

It has happened at the public health level for managing people at risk of passing on HIV to others. It’s time the application of criminal law was also harmonised.

In the meantime... be careful out there.