HIV Australia | Vol. 9 No. 2 | July 2011

by Michael Williams

In 2009, Michael Neal received a 19-year prison term with a nonparole period of 14 years for a catalogue of serious offences such as attempting to infect with HIV; reckless endangerment; rape; and possession of child pornography.

On 15 June 2011, the Victorian Court of Appeal handed down its decision in Neal v The Queen,¹ upholding his appeal against various erroneous directions given to the jury at trial by Judge Parsons. It reduced Neal’s term to 12 years with a nonparole period of 9 years. The Crown may in-turn appeal, in which case the matter will be decided by the High Court.²

In their judgment, Justices Nettle, Redlich and Kyrou provided some clarity on the issues relevant to informed consent in the context of reckless endangerment and HIV. However, there is much in this area that remains uncertain. This case note focuses only on those aspects of the ruling relevant to the transmission of HIV, rather than the other grounds of appeal, such as against the jury directions relating to rape.

In relation to the charge of ‘reckless endangerment’, the Court held that ‘informed consent’ is capable of providing a defence to a charge of recklessly endangering a person with HIV through unprotected sexual intercourse, so long as the consent is communicated to the offender’.³ Thus, if prior to sex, an HIV-positive person clearly informs their sexual partner of their status and obtains their verbal consent to have intercourse knowing this information – or sincerely believes that they obtained such consent – they will be guilty of no offence.

However, what is ‘informed consent’ beyond this example? When is consent being ‘communicated’? Arguably, a person can be informed of someone’s status without being told. Communication does not always have to be verbal before a person is conveying to another their willingness to run a risk. The Court also said clearly that ‘informed consent’ could not be raised when the offence is intentional infection with HIV. As their Honours’ discussion of the UK cases shows, the law will tolerate risk taking if the outcome is secondary to conduct that has some social utility (such as sexual pleasure), but it will not do so if one party’s behaviour is for the purpose of ‘cruelty’, which cannot have any useful social purpose.⁴

There was nothing explicit in the judgment about condoms and their relevance to acceptable risk taking. However, because reckless endangerment through anal intercourse is only an issue where condoms are not used, it follows that condoms are unnecessary when informed consent is present. Their Honours did not say this but it is implicit in the notion that a complainant has consented to run the risk of infection (which they could only do logically if intercourse was unprotected). The Court also quoted from the New Zealand case of Re Mwai, in which it was ruled: ‘ … the duty to use a condom would arise only if there were a failure to disclose’.⁵

The Court dismissed an argument by Neal’s lawyers that ‘the risk of infection through unprotected anal sex was at most less than even, and thus should have been left to the jury to determine whether it met the test “of being immediately and not remotely connected with the commission of the offence”’.⁶

According to the Court, whether an act is ‘connected’ to a desired result is based on ‘common sense’ and it need not be likely to eventuate.⁷ Similarly, the Court rejected a submission that because of the small risk of transmission Neal did not expose his sexual partners to ‘an appreciable risk’.

Yet their Honours made an interesting observation, worth quoting at length:

‘As we apprehend the notion of an “appreciable risk” of infection in this context, it means a real and potential danger of being infected with HIV which exceeds the ordinary risks of contracting HIV from homosexual anal intercourse (my emphasis)

… Professor Grulich gave evidence that the risk of an HIV infected man transmitting HIV in a single sexual act of homosexual penile anal intercourse was between one in 200 and one in 33. Similarly, Associate Professor Mijch gave evidence that, although she did not ‘feel comfortable’ with the estimate of one in 33, apparently because she perceived it might have been based on too small a statistical sample, the estimate of one in 200 is what the Centre for Disease Control in America consider to be reasonable. Professor Grulich also gave uncontested evidence that the risk of infection would increase, and could increase dramatically, with the number of occasions on which a couple have sexual intercourse. On any reasonable view of the matter, therefore, it was open to the jury to conclude that the risk was sufficient.’ ⁸

For a risk to be appreciable, must it go beyond the ‘ordinary risks’ inherent in an unprotected sexual intercourse? And what are examples of these ‘appreciable risks’: ‘rough sex’ (which may increase trauma to mucous membranes, leading to small tears or fissures in the mouth or anus, creating an increased risk of HIV-transmission), donning a Prince Albert (a genital piercing) prior to intercourse? Would a single act of unprotected sex mean that the risk was within the ordinary range of risk? Or by quoting the epidemiological evidence is the Court saying that even a single act of unprotected sex would be considered an ‘appreciable’ risk? The latter is probably the safer view, though we cannot be sure until the point is tested in the courts.

The judgment offered some insight into the relevance of undetectable viral load. The Court found that certain of the trial judge’s directions to the jury on what Neal believed about his own HIV infectiousness were flawed. While the judge directed that, for a guilty finding, Neal must have ‘believed that he may be infectious’⁹ the Crown in fact had to show that Neal ‘believed that he was capable of infecting others with HIV’¹⁰. On some counts, it was obvious through his words or conduct that he believed he was able to transmit the virus (and arguably that he intended to do so).¹¹ However, Neal’s lawyers argued successfully that certain acts occurred when he ‘had a low or undetectable viral load and, therefore, the Crown had not established that the applicant believed that he was capable of infecting others with HIV’.¹²

Arguably, then, knowledge of an undetectable viral load may be evidence that a person did not believe that they were infectious. The Crown would then have to show that a different mental state was operating – through the defendant’s words to, or conduct towards, the complainant – at the time the offences occurred. An individual’s belief about noninfectiousness would probably be stronger if their doctor had said their viral load was undetectable, but did so without any of the corresponding disclaimers to their patient regarding appropriate precautions.

Neal v The Queen clarifies the principles somewhat on risk taking and consent. However, the facts of the case are highly particular. The case was not the appropriate vehicle to fully explore how the law would respond to a defendant whose conduct was not as extreme as Neal’s. We are left to ponder the criminality of someone whom, prior to sex, failed to disclose their status, in circumstances where the complainant asked no questions. To avoid liability, we should assume that the positive person in this instance must disclose and obtain full, verbal consent from the other person to ‘run the risk’. This places the entire burden on people with HIV to protect the health of HIV negative sexual partners. It is worth remembering that, while the law must be followed, it can always be criticised as being iniquitous.

Readers of HIV Australia may be interested to note that the appeal judgment also referenced the article HIV and consent: when yes means no by HIV/AIDS Legal Centre (HALC) lawyer, Indraveer Chatterjee, published in HIV Australia Vol. 8 No. 4.

References

1 Neal v The Queen [2011] VSCA 172 (15 June 2011) (“Neal”).

2 If the Crown were to appeal, the High Court would only likely consider issues of law decided by the courts below. It seldom hears appeals on sentencing decisions.

3 ibid, para 72.

4 ibid, paras 64–73.

5 ibid, para 67, quoting R v Mwai [1995]

3 NZLR 149.

6 ibid, para 48.

7 ibid, para 49.

8 ibid, para 103.

9 ibid, para 41.

10 ibid, para 46.

11 ibid.

12 ibid.

The author would like to thank Associate Professor Matthew Groves of Monash University Law School for reading a draft and offering helpful comments. Any remaining errors are those of the author.

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