HIV and the law
All people should enjoy full human rights regardless of their HIV status, living lives free from discrimination. At the same time, individuals need to understand how the law may affect them in light of their HIV status.
The law affects all of us in different ways; some laws are punitive while others exist to protect individuals' human rights. For people living with HIV, and communities affected by HIV, the law can affect/influence:
- When and how to disclose HIV status to family, friends, employers and health providers
- When and how to disclose HIV status when entering into a sexual relationship
- Engaging in sex work
- Migrating to Australia or travelling overseas
Disclosure to family, friends, employers and services
People living with HIV who have told others about their HIV status have often experienced very negative reactions including discrimination, gossip, and violence. This may make some people reluctant to disclose. They have a right to keep their HIV status private.
Given that there is no risk of HIV transmission through casual contact, people with HIV are not legally obliged to disclose their status in social and most work contexts. The main exceptions to this are the defence force and healthcare work that involves exposure-prone procedures.
People with HIV are not legally required to disclose their status to healthcare providers, because universal infection control procedures, such as wearing gloves and safe syringe disposal, protect health care staff from HIV infection by HIV (and other conditions).
People with HIV may be required to disclose their HIV status when applying for certain types of visa, life insurance or superannuation.
The law states that HIV-positive people cannot donate blood, semen, ova or any other body tissues, so application forms given to potential donors may ask about HIV status
Disclosure to sexual partners
It is everyone's responsibility to ensure their own safety through practising safe sex.While laws in some states and territories require people with HIV to disclose their status to sexual partners prior to sex, not everyone will always do so.
Reasons for not disclosing may include:
- They will be using a condom for sex – used correctly, condoms are highly effective in reducing the risk of HIV transmission
- Fear of the consequences – social research shows people with HIV have experienced rejection, discrimination, and even violence as a result of disclosing to potential sexual partners
- Non-verbal cues lead them to believe their sexual partner is also HIV-positive
- They believe the type of sex they are having is low risk– in some cases this is true, for example oral sex is extremely low risk; in other cases they may be mistaken
- They are on treatment and believe they are not infectious – several studies have now shown zero transmissions from people with undetectable viral load to their partners.
Most people with HIV, most of the time, take care to ensure that they don't put sexual partners at risk, even if they don't disclose. In Australia, a significant proportion of HIV diagnoses occur because the person with HIV had not been diagnosed.
If you think that you have acquired HIV from a sexual partner you may be shocked and upset - and unsure what to do.
It's important in this situation that you seek support from an experienced HIV service such as an AIDS Council, People Living with HIV organisation or sexual health clinic.
Criminal prosecutions for HIV exposure or transmission
AFAO and other commentators are concerned that prosecution of people who transmit the virus to others could undermine public health efforts by stigmatising people living with HIV and discouraging those who engage in high-risk behaviours from engaging with the health system.
Engaging in sex work
Australia's Seventh National HIV Strategy includes sex workers as one of the communities most affected by HIV.
Due to peer-based outreach and education since the early years of the epidemic, there is no known case in Australia of a sex worker transmitting HIV to a client through sex work; however, in some states, being HIV-positive sex worker is a criminal offence.
HIV-positive sex workers can also be at risk of criminal prosecution under various state and territory laws regarding HIV exposure and transmission.
Scarlet Alliance, the Australian Sex Workers Association, has extensive experience in documenting the impacts of the different models of sex industry regulation.
Scarlet Alliance advocates for the decriminalisation of sex work, because this model has been shown to be the most beneficial for sex worker's human rights and health.
Migration and travel
Many countries, including Australia, impose travel or migration restrictions on people living with HIV. These include:
- Restrictions on entry, which may differ according to visa type
- Criminal sanctions related to non-disclosure of HIV prior to sex.
Laws in some countries also carry heavy penalties for people engaging in male-to-male sex or sex work.
It is possible for people with HIV to come to Australia on a variety of temporary visas, but some visas, for example for medical students, require an HIV test.
It is also possible for people with HIV to become permanent residents in Australia; however this can be a long and expensive process, especially for people applying from overseas.
This page was published on 12 January, 2011
This page was reviewed on 21 December 2015
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