HIV and the law in Victoria: the competing demands of public health and criminal justice

HIV Australia | Vol. 13 No. 1 | April 2015

By Heath Paynter

Despite a public health approach forming the basis of Australia’s response to HIV, other approaches have been used to respond to the epidemic, including use of the criminal justice system.

This article considers a Victorian law that specifically criminalises the intentional transmission of HIV in Victoria, Section 19A of the Crimes Act 1958.

In fact, Victoria is the only state in Australia that has an HIV-specific law criminalising the intentional transmission of HIV. That law highlights a tension between addressing HIV through public health initiatives aimed at empowering communities, and punitive criminal justice measures.

This article argues that the criminal justice approach not only conflicts with a public health approach, it also undermines public health measures that seek to reduce the incidence of HIV, and reduce HIV-related stigma.

Prosecutorial guidelines are needed to ensure that people who place others at risk of HIV are generally dealt with under the public health system rather than the justice system.

The law

Section 19A of the Crimes Act 1958 (Vic) (the Act) provides that:

A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence.

Subsection 2 of the Act defines very serious disease to be HIV. The provision carries a maximum term of imprisonment of 25 years.

The rationale for the law

Section 19A came into operation in 1993¹ after a number of robberies and assaults in Melbourne took place where threats involving blood-filled syringes were made against the victims.

The law was introduced to address the fear of acquiring HIV from a blood-filled syringe.

Section 19A presumes that death will be the end point to prove criminal harm as a consequence of a deliberate, intentional act. The severity of the law, which includes a maximum penalty of 25 years’ imprisonment (one level down from murder), reflects the context of HIV/AIDS in 1993.

This was a time when effective medications were only in development, and people diagnosed with HIV generally became very sick and died within a few years.²

The justification for the law’s harsh penalty lay in the associated inevitability of HIV morbidity and mortality, before the availability of effective treatment.

The law was also framed in this particular way because at the time, criminal law in Victoria could not adequately address a situation where an individual’s death was assumed to be inevitable but was suspended.

As the law stood, a person could not be prosecuted for murder until the victim died. In the case of HIV, this could be a number of years after transmission. Section 19A was introduced to address a scenario where an offender convicted of intentionally transmitting HIV would otherwise be subject to a non-fatal assault charge. As the then Attorney General, Jan Wade, explained:³

‘Modern medical science tells us that injecting another person with HIV will almost inevitably cause the death of the victim.

It also tells us that there will be in almost all cases a delay of some years before the victim dies of AIDS or an AIDS-related illness … the fact that some years will pass before the victim will die, means it is more likely that the offender will be charged with attempted murder, and that is totally unsatisfactory.’

Whatever the merits of the rationale for introducing section 19A in 1993, its focus on death and dying as an inevitable result of an HIV diagnosis is now outdated and exaggerates the harm associated with an HIV diagnosis.

The law is now without any factual rationale: an anachronism that feeds community misunderstandings regarding HIV transmission and fuels HIV-related stigma.

The use of the law

Despite section 19A being devised to address instances of HIV transmission risk through injection during an assault, no prosecutions for its originally intended purpose have ever been attempted.⁴ Section 19A has only been successfully applied in a single case involving transmission through sex.⁵ The conviction was subsequently overturned.⁶

While the ‘over-use’ of section 19A is not a major issue, its general use is. In practice, police and prosecutors use it to bargain with individuals, the outcome being that the accused is often coerced into complying with a lesser charge, such as causing injury recklessly or negligently, to avoid having to defend a charge under section 19A.

We don’t know the number of times this has occurred, but given Victoria has the highest number of legal cases involving HIV in Australia, there appears to be a culture of section 19A being used to plea bargain with individuals who are deemed to be putting others at risk of acquiring HIV.

All cases involving HIV exposure attract considerable media attention. Often only the most salacious evidence is reported and, invariably, the accused is presented as dangerous and the claimant as innocent, thus engendering fear in the community.

This outcome perpetuates the idea that people living with HIV are inherently dangerous and put the community at risk of harm.

This leaves defence counsel, police and prosecutors to negotiate media coverage that may lead to a miscarriage of justice.

The court may also find it impossible to empanel jury members not affected by the media commentary.

If the charges are dropped or the accused is acquitted, the accused still has to manage the reputational damage incurred by the media coverage.

The public health approach to managing people who place others at risk of HIV

Concurrent with Victoria’s section 19A and the criminalisation of intentional transmission of HIV are the Guidelines for the management of people living with HIV who put others at risk,⁷ first established in Victoria in 1989.

This framework, which operates slightly differently in each state and territory, is overseen by the health department in each jurisdiction, supported by a committee of representatives from affected communities, government officials and health professionals.

The Guidelines incorporate a thorough process for assessing individuals deemed to be putting others at risk.⁸

If needed, the Chief Health Officer can order that an individual’s activities be restricted or that they undergo particular activities, like counselling. These orders are binding and act like court orders, and consequently the individual can also appeal such orders before a judge.

The model encourages engagement with individuals in a way that is intended to be consultative and compassionate, rather than combative and litigious as in criminal justice system.

It is rehabilitative and based on public health objectives. It acknowledges HIV as a preventable condition, and that education and awareness are needed to inform the community about safe sex and safe injecting.

An individual’s right to privacy and confidentiality is also recognised with an emphasis on consultation in a way that least restricts the rights of the individual.

The public health management guidelines do not rule out use of criminal laws in cases of allegedly deliberate transmission of HIV.

The Chief Health Officer has the power to enforce orders against individuals but where an individual, after ongoing consultation and support, continues to put others at risk, the Chief Health Officer can refer the individual to the police – at which time the individual can be dealt with through the criminal justice system.

Referral to police only occurs after all avenues of rehabilitation have been exhausted, although this can happen at deemed to be ineffective.

Removing section 19A would not mean that people considered to have deliberately transmitted HIV could not be charged with a criminal offence; it would leave alleged cases of HIV transmission in Victoria to be dealt with through general criminal provisions in the Act – as is the case in other jurisdictions. These provisions of the Crimes Act 1958 (Vic)⁹ are:

section 16: Causing serious injury intentionally
section 17: Causing serious injury recklessly
section 22: Conduct endangering life
section 23: Conduct endangering persons.

The co-existence of Victoria’s section 19A and the public health approach for dealing with individuals who are considered to be putting others at risk of HIV clearly exposes the tension between addressing HIV as a public health issue and addressing HIV as a criminal issue.

HIV-specific criminal laws stigmatise HIV in a way that conflicts with public health messages.

Overseas studies in similar jurisdictions have shown that the public perceives an association between health officials and the police, and that this deters people living with HIV from accessing health services and seeking information about safer sexual practices.¹⁰

These studies confirm the degree to which stigma acts as a barrier to disclosing HIV status and also its impact upon engagement with services targeting sexual health.

Prosecutorial guidelines

There is a need for prosecutorial guidelines to be developed to better inform police and prosecutors at the frontline of responding to allegations of alleged transmission of HIV. Such guidelines might look at:

the historical context of HIV legislation, including the applicability of general criminal laws to cases of alleged HIV transmission
scientific and medical developments in HIV treatment, including treatment as prevention
prevention strategies developed by the community to reduce HIV transmission
prevention strategies used by people living with HIV to prevent HIV transmission
the context of the alleged transmission.

Importantly, the guidelines would inform legal practitioners and the judiciary of the public health model, and provide guidance for referral.

Conclusion

The repeal of section 19A will not protect people with HIV from being arbitrarily and unjustly exposed to the criminal justice system, or from negative attitudes towards HIV and sexual diversity from police and prosecutors.

However, its repeal will eliminate the stigma caused by having a specific law in place that casts people with HIV as dangerous and harmful vectors of a deadly disease.

The recently elected Victorian Government has a mandate to repeal section 19A and introduce prosecutorial guidelines.

It is important that the Government consult with community organisations, like the Victorian AIDS Council (VAC) and Living Positive Victoria, in implementing these reforms.

Of particular importance is the need to develop prosecutorial guidelines to ensure that due consideration is given to dealing with people assessed as placing others at risk of HIV under the public health system rather than under the criminal law.

References

1 Crimes (HIV) Act 1993 (Vic) (“the Amending Act”)

2 ibid.

3 Victoria, Parliamentary Debates, Legislative Assembly, 28 April 1993, 1259–1260 (Jan Wade, Attorney General). Reproduced in Living Positive Victoria (LPV), Victorian AIDS Council (VAC). (2014). Policy Brief: Repeal of Section 19A. LPV, VAC, Melbourne. Retrieved from: www.livingpositivevictoria.org.au

4 ibid.

5 Neal v The Queen [2001] VSCA 172.

6 In that same case the accused was also charged with numerous counts of unintentional transmission, of which he was convicted.

7 The Victorian Department of Health guidelines are available at: Department of Health (DoH). (2010). Guidelines for the management of people living with HIV who put others at risk. Health Protection Branch, Victorian Government, DoH, Melbourne. Retrieved from: docs.health.vic.gov.au

8 ibid., 6.

9 See: www.austlii.edu.au

10 Patrick O’Byrne, Nondisclosure prosecutions and population health outcomes: examining HIV testing, HIV diagnoses, and the attitudes of MSM following nondisclosure prosecution media releases in Ottawa, Canada, BMC Public Health, 2013.