Groundbreaking New Zealand case on disclosure 

A recent NZ case clarifying positive people’s responsibilities in preventing HIV transmission has made headlines around the world. SALLY CAMERON looks at the circumstances of the case, how Judge Susan Thomas came to her decision and its applicability to Australia.

On 4 October 2005, the Wellington Court ruled that HIV positive people do not have to reveal their serostatus to sexual partners if they use condoms. The case in question considered the actions of Justin Dalley, who faced two charges of criminal nuisance against a woman he met over the internet. In summary, the charges were that he failed to inform the woman that he was HIV positive 1) before having oral intercourse and 2) before having vaginal intercourse, knowing that doing so would endanger her health.[1]  Mr Dalley did not use a condom during the oral sex they had with each other but did use a condom during the vaginal sex. 

Importantly, this was a case involving ‘exposure’ not ‘transmission’[2], ie. the woman did not contract HIV.  In all previous cases heard in New Zealand (exposure and transmission), condoms had not been used. Also, the issue being tested was Mr Dalley’s duty to use “reasonable” precautions and care, not “failsafe precautions”.

In making her decision, Judge Thomas relied heavily on the evidence of medical experts.

1. Oral intercourse

Mr Dalley and the woman involved did not use a condom during the oral sex they had with each other. Judge Thomas noted that in this instance, the woman had testified that Mr Dalley did not ejaculate and that there had been only a ‘tiny bit’ of pre-ejaculation fluid. The judge accepted the defence evidence of Dr Meech who cited a 10 year Spanish study which found no case of transmission through oral sex. He suggested best guess estimates put the risk as somewhere around a 1 in 10,000 to 1 in 20,000 risk. The judge found “the risk of transmission of the virus as a result of oral intercourse without a condom is not zero because it is biologically possible, but it is so low it does not register as a risk”. 

2. Vaginal intercourse

Judge Thomas referred to an earlier case (Mwai[3]) which had found that reasonable precautions and reasonable care require condom use.  She then tested the question, “Was the use of a condom sufficient to constitute reasonable precautions against and reasonable care to avoid the transmission of the HIV virus?”

Transmission without a condom

Judge Thomas noted that the risk of transmission from an HIV positive man to a woman during vaginal intercourse is “relatively low”, noting that the expert evidence was relatively consistent:

The prosecution say that [the risk] is approximately 5.75%. The defence put the risk at even lower, four different trials putting the risk between 8-20 per 10,000 exposures; other sources putting it at 0.1%. The evidence for the defence was extensive, comprehensive and persuasive on this point.

Reliability of condoms

The Judge then tested evidence on the reliability of condoms. The prosecution expert, Dr Sparrow cited a 1994 Family Planning Association study on the breakage and slippage of condoms. The study, involving 500 clients and approximately 3,700 events, reported an incidence of 10.9 percent of slips, breakages or leakage of condoms. In cross-examination, Dr Sparrow confirmed that those in the group who reported particular problems were generally younger and less experienced in condom usage and that oral or anal intercourse carried a higher risk of breakage or slippage than vaginal intercourse.  Dr Sparrow also noted the caution on the condom packet which noted, “No method of contraception can provide 100% protection against pregnancy, HIV or sexually transmitted infections.” The prosecutions other medical expert, Dr Blackmore, stated that condoms are estimated as approximately 80 percent effective.

Defence expert, Dr Meech, then gave evidence about the effectiveness of condoms noting two sorts of failures - manufacturing defects and user failures, including exposure to excessive heat or conditions that may cause deterioration such as failure to use before the expiry date, nicking the condom when opening the pack, putting the condom on incorrectly and lack of water-based lubrication. Dr Meech confirmed the evidence of Dr Sparrow that younger, inexperienced people seemed to have more problems. He referred to a year 2000 study involving 180 participants which noted a breakage rate of 0.4% – 2.3%, slippage of 0.6% - 1.3%, and combined breakage and slippage of 1.6% – 3.6%. Dr Meech noted that the figures in Dr Sparrow's study were much higher than he would expect in contemporary studies as far as breakage and slippage are concerned.

Judge Thomas found that condoms are 80 percent to 85 percent effective, “thus significantly reducing the risk of HIV transmission during vaginal intercourse which, even using the prosecutions figures, is low”[4].

Current Expert Advice to Positive People

Doctors Blackmore and Meech were asked what advice they give to HIV patients to minimise the risk of HIV transmission.  Dr Blackmore said discussions relate to minimising the risk of transmission, including the use of condoms, and advice on when the risk of transmission is low and when it is high. Dr Meech stated that he would routinely give advice that the person should not engage in behaviours that result in transmission including that they should use a condom each time they have a sexual experience, that the condom should be applied before any genital contact takes place, and how to apply a condom correctly. Dr Meech noted it is not his routine practice to make any statement around disclosure. Dr Meech indicated the Australasian College of Sexual Health Physicians Contact Tracing Manual[5] which he considers the closest document to a blueprint for action of an Australasian nature.  The Manual’s section on preventing transmission gives precise information on prevention through behavioural modification but does not mention disclosure. There is a recommendation that a condom is used but no recommendation that an HIV person should disclose his or her status to a sex partner.

The decision

The judge stated that in deciding that Mr Dalley had taken reasonable precautions and was not guilty of criminal nuisance, she had to attach significant weight to the approach of the relevant health professional bodies and that there was no evidence to suggest that experts in the area consider that prevention of the transmission of HIV requires disclosure. She also considered the relatively low risk of transmission when a condom is used for vaginal intercourse.

Judge Thomas also noted:

It seems to me that most people would want to be told that a potential sexual partner was HIV positive. There may well be a moral duty to disclose that information. There is however a difference between a moral duty and a legal duty, the legal duty in this case being to take reasonable precautions against and use reasonable care to avoid transmitting the HIV virus.

 

Reactions to the decision

The decision has been widely supported by those involved in the HIV sector, particularly in recognising that the safe sex focus on condom use is the key strategy for reducing HIV transmission. New Zealand AIDS Foundation Executive Director, Rachael Le Mesurier made the point to ABC News Online: "Relying on HIV positive people to tell you, and assuming that unprotected intercourse is safe if HIV is not mentioned, is a much riskier strategy, especially as approximately one third of people with HIV in New Zealand don't know they have it.”.[6]  There also remain concerns that laws forcing people to reveal their HIV status would discourage people from testing.

Backlash

According to The New Zealand Herald, police have not yet decided whether to appeal, however, the case has opened debate over whether New Zealand law should be changed to require mandatory disclosure of HIV-positive status regardless of condom use.  The paper reports caretaker Justice Minister Phil Goff as saying that there were no immediate plans for changing the law. Mr Goff said the case of deliberately not using protection and having intercourse was far more clear-cut but that he would listen to the public debate, and it might be an area that officials could work on. [7]  There have been numerous negative, inflammatory articles in the media.

Applicability to Australia

It is difficult to gauge exactly how the New Zealand case would apply against Australian law. The issues are complicated by two factors.  Firstly, there are two types of laws that apply in Australia: criminal laws and public health laws.  HIV is not covered by public health laws in New Zealand (although AIDS is).  Secondly, every Australian state and territory has different laws, so it is impossible to generalise across all those jurisdictions. The fact that the case is from New Zealand which has a relatively compatible legal system to that in Australia, makes it more likely to be relevant in more instances than cases from most other countries, however, in some states it would simply not be applicable to those states’ specific laws.

Australian public health laws

As outlined in the table below, each state and territory in Australia has quite different laws relating to HIV, although the Northern Territory does not have a specific law and Western Australia’s law would be difficult to apply.[8]  The ACT, South Australia and Victoria demand a person takes “reasonable measures” to prevent transmission, so similar evidence may be applied as that used in the New Zealand case.  Queensland law states a person must not “deliberately or recklessly” put someone at risk, and Victorian law states a person must not “knowingly or recklessly” infect another person, so again the types of evidence used in New Zealand would likely be applied against definitions of recklessness and also the person’s understanding of (deliberately/knowingly) putting someone at risk or infecting them. Only New South Wales demands that a positive person informs the other person of their HIV status, and unfortunately, the importance of safe sex practices is absent from that law.  At this time, many of these laws have not been prosecuted.

Criminal laws

Criminal law provisions are also complicated because of the complexity around issues related to the accused’s state of mind, such as proof of intent, recklessness and the absence of mistake of fact on the part of the defendant[9], and there are numerous laws which may be applied in each state. 

Depending on a range of factors, criminal transmission charges could include murder, attempted murder, manslaughter, common assault, assault occasioning actual bodily harm, acting with intent to wound or inflict grievous bodily harm, negligently causing injury, causing a noxious thing to be taken by another with intent to injure, causing a grievous bodily disease[10], and conduct recklessly endangering life.  Below is a summary table[11] of those criminal laws considered most likely to apply.

Anyone with questions relating to a particular case should seek legal advice about the specifics of their case and the applicable laws in their state.

Health Act 1958 (S. 120)

A person must not knowingly or recklessly infect another person with an infectious disease (including HIV).

  It is a defense if the other person knew of and voluntarily accepted the risk of being infected with that infectious disease.

Sally Cameron is a former Policy Analyst with AFAO.