Australian criminal law and the sexual transmission of HIV

HIV Australia | Vol. 8 No. 4 | January 2011

SALLY CAMERON examines options for policy and law reform to address arbitrary application of criminal laws in relation to HIV transmission and exposure 1

Recent concerns about the intersection of HIV and criminal, civil and public health law have triggered a range of discussions and initiatives by those working in the HIV sector, however, clear strategies to deliver policy or law reform have been slow to develop. That is hardly surprising given the myriad intersecting factors and practices which must be understood and considered across eight jurisdictions. Many of those lie in the practice of law which is outside the expertise of most in the sector.

Similarly, the ethical issues are complex. No one in the HIV sector seeks to minimise the impact of HIV infection. HIV remains likely to trigger serious physical, psychological and social consequences: a reality well understood by HIV service providers and people living with HIV peer-based organisations. Service providers are well aware there are some (albeit few) who deliberately or recklessly put others at risk of infection, and that there must be measures to address such behaviours. Still, many in the sector are unsettled by the criminalisation of sexual HIV transmission, the possibility of related civil legal action, and concern that public health management systems may not be operating optimally or may be undermined.

The likelihood that individualised legal actions undermine ‘mutual responsibility’ messages strikes at the heart of successful HIV prevention practice.

The reality that some two or three people are being prosecuted in an environment where more than 900 instances of HIV transmission occur as a result of sexual acts each year suggests an element of arbitrariness in the application of Australia’s criminal laws, across jurisdictions, that is unacceptable. Following detailed analysis of recent criminal cases, the Australian Federation of AIDS Organisations (AFAO) has pulled together an outline of possible strategies to better engage with agencies involved with the implementation of Australian law as it impacts sexual transmission of HIV. That work is soon to be formalised through publication of a discussion paper, which includes possible strategies and actions. The discussion paper, titled HIV Crime and the Law: Options for Policy Reform (PDF - 994 KB), forms the basis of this article.

The list of possible strategies set out in AFAO’s discussion paper is in no way intended to be prescriptive; nor is the outline comprehensive. The paper will ideally enhance understanding of the issues in each jurisdiction and possibly initiate actions, or changes of direction. The inclusion of possible strategies in the AFAO paper is intended to facilitate focused discussion among AFAO Member Organisations and key stakeholders, so that we are better placed to formulate concrete actions to address core issues – nationally, under the Sixth National HIV Strategy, and within each jurisdiction.

Enable detailed discussion and policy development

In August 2008, the UNAIDS Policy Brief: Criminalization of HIV Transmission2 recommended that civil society:

… monitor proposed and existing laws and advocate against those which inappropriately criminalize HIV transmission and impede provision of effective HIV prevention, treatment, care and support services.’

Such advocacy would require the development of sophisticated networks among community, government and academic institutions across all eight state jurisdictions, as well as input from experts in law and public health administration. Further work is required to determine whether community support can drive policy and (possibly) law reform in this area. If so, specific strategies must be developed and clearly articulated.

While ‘human rights, legislation and anti-discrimination’ are grouped as one of four priority areas for action in the Sixth National HIV Strategy, 3 the issue of HIV criminalisation is barely acknowledged. As such, there is no firm government-endorsed national policy directive on the issue. Notably, the Ministerial Advisory Committee on Blood Borne Viruses and Sexually Transmissible Infections has recently established a Legal Issues Working Group, although the potential of that group is as yet unknown.

One effect of related criminal and public health law falling under state jurisdiction has been a lack of movement towards effective harmonisation of such state/territory laws. Further work is required, firstly, to consider whether such harmonisation would be beneficial, and secondly to determine how this work might be carried out. Basic questions remain unanswered, including whether the types and severity of criminal law being applied in each state are comparable, and whether states are now delivering greater consistency and the best possible public health management under the National Guidelines for the Management of People with HIV Who Place Others at Risk (close monitoring of which is listed as a priority action in the Sixth National HIV Strategy).

Many agencies are likely to be involved in work relating to the intersection of HIV and law. That work may benefit from the establishment of a focal point for canvassing these issues (possibly AFAO) to collect, analyse and redistribute state-based and international information so that key organisations have access to current domestic and relevant international research and legislative and policy analysis.

Develop mechanisms to learn more about individual cases

Analysis of criminal and civil cases to date is stymied by the absence of mechanisms to collect data on individual cases. Considerable benefit may be gained from the collection and analysis of information about individual trials. This could take a variety of forms including collection of court transcripts, where available (currently a prohibitively expensive endeavour), or training of court observers to attend and provide comment on trials as they proceed.

Research priorities

The application of law in cases of HIV transmission/exposure through consensual sex is currently under-researched. This undermines development of an evidence-based response, including the development of policy priorities. Research is required on the intersection of public health and criminal law mechanisms (including analysis of cases). We also need to better understand the role of gender, ethnicity and other social determinants – by identifying what makes the likelihood of public health intervention or prosecution more likely, and investigating any differential impacts of criminalisation on different communities. There is currently no mechanism to ascertain where and by whom research relevant to criminalisation and public health management is being undertaken. Establishment of a focal point may assist in this area.

Work with police

Policing policies, procedures and workforce cultures directly influence the experience of accused and witnesses, as well as the likelihood of cases proceeding to court. Anecdotal evidence suggests that in some instances police have instigated cases without consulting Directors of Public Prosecution (or public health authorities), and that investigation of exposure/transmission cases which include investigations of sexual relations are not always undertaken with appropriate levels of care and respect. Anecdotal reports also indicate that investigating police frequently fail to understand the basics of HIV transmission risk and the practice of risk behaviours.

In August 2008, the UNAIDS Policy Brief, Criminalization of HIV Transmission, 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, by stipulating that an accused person’s responsibility for HIV transmission be clearly established beyond a reasonable doubt, and by clearly indicating those considerations and circumstances that should mitigate against criminal prosecution).’

A review of police handling of HIV transmission cases in each Australian jurisdiction would usefully inform development of improved protocols for gathering evidence, by interacting with health departments, and engaging with witnesses and other stakeholders. Such work has been undertaken in comparable settings. For example, in the UK, the Terrence Higgins Trust in collaboration with the Association of Chief Police Officers, the (London’s) Metropolitan Police and other community groups conducted a review of police handling of cases. 4 Following the review, new protocols were produced by a working group which included police officers, representatives of the Crown Prosecution Service, the National Policing Improvement Agency, and the National AIDS Trust to assist police when investigating allegations of criminal transmission of HIV.

Australian state-based protocols would potentially include processes for formal engagement with state health departments and procedures for dealing with complaints in a fair and sensitive manner. They could also include accompanying resources to provide police officers with basic facts about HIV, current scientific, social and behavioural evidence, and the operation of the public health management system.

Work with justice agencies

Directors of Public Prosecutions directly influence whether cases proceed and how they are run. While it is a requirement that prosecution of a criminal case must be in the public interest, it is not known how the ‘public interest’ is determined in the context of criminal cases involving HIV transmission.

UNAIDS Policy Brief: Criminalization of HIV Transmission recommended that governments:

‘Apply general criminal law only to the intentional transmission of HIV, and audit the application of general criminal law to ensure it is not used inappropriately in the context of HIV.’

That is not being done 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.

When AFAO has endeavoured to discover basic information about concluded cases (including simple questions, like ‘what specific charge was laid?’), some DPP offices have not been forthcoming. This situation contrasts to the UK experience, where the community sector persuaded the Crown Prosecution Service (CPS) to consider advice from the National AIDS Trust and the Terrence Higgins Trust when developing guidelines on prosecutions relating to sexual transmission of HIV. The CPS Policy for prosecuting cases involving the intentional or reckless sexual transmission of infection 5 has clarified issues for the public and has provided important guidance for police and prosecutors. In Ontario, Canada, the HIV sector is also pursuing the development of prosecution guidelines.

Further discussion is required to gauge whether other legal remedies may be appropriately applied to particular instances of HIV exposure or transmission, including the possibility of a renewed focus on public health offences, alternative dispute resolution mechanisms or diversionary programs.

It would also be useful to undertake a review of laws being applied and the severity of penalties they attract. For example, do penalties attached to assault offences generally reflect the same culpability if harm is caused by a knife attack or as a result of consensual sex? Many international jurisdictions attach lower penalties to cases of HIV exposure/transmission. In India, for example, draft legislation provides that a ‘first offence’ for failure to disclose HIV status or practise safe sex attracts a fine, with a more severe penalty imposed if the behaviour is not corrected.

Work with public health officials

Input of public health expertise and due regard to public health principles have been noticeably absent from the criminal law response to HIV exposure/transmission. Public health officials and legal officers appear determined to keep their respective fields separate, indicating a commitment to safeguard the integrity (and separation) of their rationale and their processes. Of course, it is essential that public health and criminal law procedures remain distinct. However, considerable benefit would be gained from public health officials engaging with police and justice officials at a senior policy level to inform prosecution practice. Such inter-sectoral exchanges across policing, prosecution, health and social services are not new. For example, such exchanges revolutionised police and prosecution responses to sexual assault and domestic violence in the 1980s and 1990s. The Sixth National HIV Strategy offers the potential for an informed cross-government response.

There is a pressing need to develop liaison protocols – both from health to police and police to health. Given at least four state health departments have recently been drawn into criminal law matters relating to HIV exposure/transmission, the observations of those involved could inform development of a best practice police/prosecution response. Further, the impact of prosecutions on public health officials’ work must be duly considered.

Consideration should also be given to the effectiveness of current public health responses, particularly the advantages/disadvantages of increasing levels of intervention for those who appear unwilling to alter their risk behaviours and the equity of a system that lacks formal provision of a support person (advocate or witness) for those on whom public health interventions are imposed.

Judges’ understanding of HIV

The expertise of lawyers, judges and magistrates directly impacts the course and outcome of matters involving HIV exposure/transmission – affecting scrutiny and analysis of evidence, instructions to juries, sentencing, and future trials (through the use of precedents). Formal judicial education is now well-established in Australia, with specialist judicial education organisations providing education on a wide range of subjects. There is clearly a need for judicial education regarding HIV.

Developing the response

The criminalisation of HIV transmission and its intersection with other areas of law requires a sophisticated response involving both the government and community sectors, informed by behavioural and scientific research. Some in the HIV sector and law reform circles may argue that given the small number of HIV related criminal cases, this work should not be prioritised. But the number of criminal cases running at any time in Australia is not the point. The point is that the criminal law in some Australian jurisdictions is ambiguous in terms of HIV transmission, and is arbitrarily applied, and this undermines the public health response for which Australia is renowned.

In short, this is not an issue for simplistic slogans or a single political line. It needs careful analysis, an evidence base and practical actions.

References

1 Thanks to Linda Forbes and Abi Groves (AFAO), John Rule (NAPWA), David Scamell (ACON), and John Godwin whose editorial assistance and collaborative efforts on this and earlier pieces of work inform the drafting of this article.

2 UNAIDS and UNDP. (2008). UNAIDS/UNDP Policy Brief: Criminalization of HIV transmission, Geneva.

3 Australian Government. (2010). Sixth National HIV Strategy: 2010–2013, Department of Health and Ageing, Canberra.

4 Power, L. (2009). Policing transmission: a review of police handling of criminal investigations relating to transmission of HIV in England and Wales, 2005–2008, Terrence Higgins Trust, London.

5 Crown Prosecution Service. (2008). Policy for prosecuting cases involving the intentional or reckless sexual transmission of infection. London, Crown Prosecution Service.


Sally Cameron is a consultant and former policy analyst at AFAO. She is currently undertaking a project on criminalisation for AFAO.

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This page was published on 03 April, 2011

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