Positive Life NSW

An HIV positive male sex worker in Canberra has been jailed for more than two months after a high profile public prosecution, including naming him, even after the magistrate admitted that it is impossible to know if unprotected sex had ever taken place.

This year at AIDS 2008, the international HIV conference in Mexico, a large number of delegates challenged the criminalisation of HIV around the world, claiming that criminalisation forces people with HIV underground. It discourages testing which, in turn, plays a part in increases in the rates of HIV transmission.

In the ACT, as a direct result of this year’s high profile prosecution, the local outreach clinic has seen sex workers’ fear of testing increase, with the regularly monthly figures dropping from 40 per month to two per month. This was reported to the Attorney-General, Simon Corbell, a week prior to the sentencing. At that time Corbell admitted, “We know that with appropriate safe sex measures in place, the risk of transmission is negligible.”

There has also been much written about best practice for public health policy in relation to the management of HIV, with the ACT only recently signing up to the national guidelines on the management of people with HIV who place others at risk. This document also recommends using criminal prosecutions as a last resort and only for cases of serious intentional transmission.

The rationale behind this approach is the understanding that HIV is here to stay and we all need to learn to live with it. This means that for casual sex, including sex work, all people involved need to assume that everybody is, or could be, HIV positive. This is true whether they know their status or not, as some people do not yet know they have HIV.

It is far more dangerous to give the impression that a certain section of society is HIV free, which only increases the incentives to forego safe sex. Couple this with harsh penalties for people who have taken steps to learn their status, and it creates a dangerous situation where HIV can thrive, and transmission rates can significantly increase.

Magistrate Burns claimed his judgement was in the interest of public health. However his evidence for this claim is completely out of date. The best public health outcome would have been to drop all charges and remind ACT residents that people with HIV exist everywhere, and the only effective strategy for Australians to protect themselves is to use condoms and water based lube.

I know people are sick to death of hearing the safe sex message, but the alternatives are far scarier: having untested, undiagnosed and unchecked HIV infections in people who are too scared to get tested, with claims to others that they have never tested positive to HIV.

Kane Matthews is the author of The National Needs Assessment of Sex Workers who live with HIV, commissioned by Scarlet Alliance, the Australian Sex Workers Association. The full report is available on the Scarlet Alliance website (www.scarletalliance.org.au). This is an edited version of Kane’s article was first published on the ABC site (www.abc.net.au)