HIV prison laws inflame stigma, offer no protection

Media Release
11 May 2020

Proposed laws to forcibly test prisoners for HIV have no basis in science, perpetuate stigma, and should be referred to a parliamentary committee, according to the WA AIDS Council and National Association for People with HIV Australia.

Under laws set to be introduced to the WA Parliament on Tuesday, a prisoner who assaults a prison officer will be immediately tested for HIV. The laws overlook the following critical facts:

  • HIV is not transmitted through saliva, a key myth perpetuated to justify this and similar legislation.
  • In the unlikely event a prison officer was exposed to HIV, they should take post-exposure prophylaxis, a medicine which can prevent transmission within 72 hours of exposure.
  • The Government’s press release falsely claims prison officers who have been assaulted have to wait three months before they themselves can be tested for HIV. This is false. Modern HIV tests detect exposure within six days.
  • Falsely equating HIV with criminality inflames stigma and discourages people from seeking tests for HIV.
  • A vaccine exists for hepatitis B and there is a cure for hepatitis C.

WAAC President, Asanka Gunasekera said:

“HIV thrives on stigma and misinformation. These laws inflame that problem and hinder our prevention efforts. Marginalised communities such as gay and bisexual men, people who inject drugs, and sex workers will be less likely to seek a test for HIV when they see it associated with criminality.

“Part of the case for these laws rests on the discomfort prison officers face when they are spat upon. However, HIV is not transmitted through saliva, destroying one of the key arguments for introducing this legislation.

“The Government has also argued a prison officer may face an anxious three month wait to know if they have contracted HIV. The truth is that modern tests pick up the presence of HIV within six days of exposure. Rapid tests provide highly accurate results within fifteen minutes.

NAPWHA President Scott Harlum said:

“Frontline workers including prison officers need to know they’re being sold a lie and offered nothing but dangerous false reassurance by these proposed laws and any government promoting them.

“There is no mystery in how best to respond to a genuine potential exposure to HIV, such as a needlestick injury, and that does not include any time wasted or misdirected attention on anybody but the person potentially exposed.

“In cases where someone faces genuine potential exposure to HIV, such as a needlestick injury, post-exposure prophylaxis medicine is highly effective at preventing HIV transmission if taken as soon as possible and within 72 hours. Additionally, all frontline workers should be protected against hepatitis B through vaccination.

“These laws fail to solve any problem, and only hinder the HIV prevention effort. Likewise, there is no evidence mandatory testing of prisoners will do anything other than further marginalise those living with HIV and other blood borne viruses. Amplifying anxiety and misplaced fear around HIV is simply the wrong thing to do.”

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Anxiety about HIV criminalisation among people living with HIV in Australia

Data from HIV Futures – a national periodic survey of health and wellbeing of people living with HIV conducted by the Australian Research Centre in Sex, Health and Society of La Trobe University was used to examine the relationship between criminal laws and quality of life for people living with HIV. The paper concluded that laws criminalising the transmission of HIV have a negative impact on the health and wellbeing of people living with HIV in Australia.

“HIV Futures involves over 800 people living with HIV across Australia focusing on a range of issues related to health and wellbeing,” explains co-author Dr Jennifer Power, elaborating that in this paper we [the co-authors] found an association between greater levels of worry about HIV criminalisation and poorer mental health.

HIV activist, lawyer, and paper co-author Paul Kidd continues, “In the study, we found that people who reported higher levels of anxiety about criminalisation also reported lower levels of resilience and a greater sense of vulnerability to HIV-related stigma”.

Although the vast majority of people with HIV understand and comply with laws about disclosure and taking reasonable precautions, a third of HIV Futures respondents said they were worried about disclosing their status to partners due to the risk of criminalisation. Almost a quarter of respondents were concerned about disclosure to service providers for the same reason.

“That suggests a level of fear and anxiety about unjust prosecution and profound negative impacts. Importantly, anxiety about criminalisation was higher among groups that are already marginalised, including people from culturally and linguistically diverse communities and those experiencing financial hardship.”

NAPWHA co-author, Dr John Rule continues, “We’ve always understood that criminalisation of HIV and recourse to the legal system leads to problematic outcomes that are not based in known, successful public health approaches.”

There are a number of things we can do to respond to these findings. Improving awareness of the criminal law among people with HIV and ensuring people are aware of the requirements in their Australian State or Territory could help allay concerns. Improving peer support, especially for people newly diagnosed or those from more marginalised communities is equally as important. But ultimately, fears and anxieties about HIV criminalisation will only be eliminated when we end the criminalisation of un-intentional transmission and exposure. That needs to be the end goal.

Dr Jennifer Power, the leader of the study reminds us, “It is important that we use findings from studies such as HIV Futures to reflect on the ways existing policy and service delivery affects the 30,000 Australians who are living with HIV. The paper on criminalisation demonstrates that research can be used to point towards policy changes and responses.”

Currently the HIV Futures 10 Survey is open until March 2022.
Participants can enroll and respond to a series of questions about their health and quality of life.

Further viewing: Paul Kidd — HIV and the Law

Presentation Synopsis

In this address at the Art of Art in May 2018, Paul Kidd explores: What is the role of the criminal law in relation to HIV medicine? Medical practitioners and other health care workers provide testing, diagnosis, counsel and care – but the use of the criminal law to prosecute people with HIV means health professionals may also find themselves entangled in a criminal investigation. What should we tell patients about their rights and responsibilities when it comes to HIV transmission or exposure? Taking medical and legal notions of consent as its starting point, this presentation will explore the complex and problematic impacts of HIV criminalisation on medical practice and the lives of people living with HIV, discuss the unrealised potential for the criminal law to be a healing process, and provide some guidance for practitioners who need to balance their roles as health providers with the legalities of HIV transmission and exposure.


Paul Kidd is an activist, writer and commentator with a particular interest in LGBTI law reform and legal issues affecting people living with blood-borne viruses. He was the founding chair of the Victorian HIV Legal Working Group, is a past President of Living Positive Victoria, has served on the boards of the Victorian AIDS Council, Hepatitis Victoria and the Equality Project, and is a member of the Victorian Government LGBTI Justice Working Group. He holds an honours degree in law from La Trobe Law School.

Further viewing: Aaron Cogle — HIV Criminalisation

Video:  In this address at the 2021 Virtual Australasian HIV&AIDS Conference, Aaron Cogle (NAPWHA CEO) presents on HIV criminalisation in a symposia entitled ‘Regulating Sex.’ 

Further viewing: Guide to the Legal issues within Victoria (by Living Positive Victoria)

Video:  Watch the video recording of the Living Positive Victoria online launch in August 2021 of a guide to disclosing your HIV status, featuring inspiring and compelling stories of disclosure from members of their community.