Changes have recently been made to the NSW Crimes Act, which relate to the intentional or reckless transmission of HIV. It is important that all people with HIV have a full understanding of the legal situation in NSW and what that means for them and their sexual partners.
If you have questions or comments we would be interested in publishing them as letters in Talkabout. Please email your responses to editor@plwha.org.au
What the law says
In NSW the law regarding transmission of HIV is covered under two separate Acts, the Public Health Act 1991 and the Crimes Act 1900. These two laws act in very different ways, so it is important to have an understanding of both. A person can be dealt with under each or both of the Acts, depending on the situation.
Public Health Act
The Public Health Act requires any person who has an STI, including someone who is HIV positive, to inform any prospective sexual partner of their status and the risk associated with having sexual intercourse before intercourse takes place. The prospective partner must also voluntarily accept the risk involved.
Under the Act, sexual intercourse includes anal, vaginal and oral sex.
Fines of up to $5,500.00 may be imposed on any person who contravenes this provision.
It is important to note that under the Public Health Act, it is not sufficient to have used condoms. The law requires that you disclose your status to your sexual partner/s prior to sex.
The Public Health Act also empowers NSW Health to undertake a range of measures to manage people who may be at risk of infecting others with HIV.
Crimes Act
Under the Crimes Act, a person who recklessly causes another person grievous bodily harm (GBH) can be imprisoned for up to 10 years. This can include causing someone to be infected with HIV. A person is reckless where they are aware that there is a risk another person may be caused GBH as a result of their actions, but proceeds to act anyway.
Although not specified as a defence, the use of condoms or other safe sex methods is likely to mean that a person was not being reckless if transmission occurred. Likewise, based on previous legal cases involving non-HIV forms of GBH, it is likely that a person cannot escape conviction because the person who became infected accepted that risk by practising unsafe sex.
However, as the laws are relatively new, there is currently no legal precedent for what will constitute a defence in relation to causing someone to be infected with HIV. This may evolve as legal cases are brought before the courts.
If a person recklessly causes another person GBH while in the company of others, they can be liable for up to 14 years in prison. While the law does not specify the situations where this provision would apply, it could apply to a man who has transmitted HIV during group sex.
If someone intentionally causes another person GBH, including infecting someone with HIV, then they can be sentenced to up to 25 years in prison.
Our Position
The law in NSW prohibits the intentional or reckless transmission of HIV and requires that people living with HIV/AIDS must disclose their status prior to sexual intercourse (including oral sex).
ACON and PLWHA (NSW) acknowledge the need for the use of criminal and public health law provisions in certain circumstances and the importance of people understanding their obligations under the law.
We also acknowledge that the evidence suggests disclosure of HIV status by people with HIV is not always an effective strategy in preventing HIV transmission.
We recognise that the vast majority of people actively seek to protect their own, and their partner’s, sexual health. In these circumstances, legal intervention is not needed or appropriate.
We recognise that due to a range of social and psychological factors, some people may engage in behaviour that endangers their own, and their partner’s, sexual health. In these circumstances, public health interventions should be used to manage those who are at risk of infecting others with HIV.
We recognise that a very small number of people living with HIV/AIDS may deliberately or recklessly expose others to the risk of HIV transmission. In these circumstances, criminal prosecution may be appropriate.
ACON and PLWHA (NSW) believe that everyone has a responsibility to ensure that HIV is not passed on. Both HIV positive and HIV negative people must take responsibility for protecting themselves, as well as their sexual partners, from HIV.
The way in which the media has portrayed the recent increase in criminal prosecutions may undermine public health interventions by creating negative stereotypes about people living with HIV/AIDS and perpetuating misinformation about the best methods of HIV prevention.
Therefore it is timely that we acknowledge and support:
- The rights of individuals to information that will assist them in making informed decisions to protect and maintain their health.
- The creation of environments free from stigma and discrimination that support appropriate disclosure of HIV status.
- The promotion of condoms and lube as the most effective strategy for the prevention of HIV transmission.
