HIV is not a Crime Awareness Day, is an annual awareness day on 28 February. It’s a day to raise awareness about HIV criminalisation and build understanding of systemic injustice that still surrounds the ordinary lives of people living with HIV.
What does HIV criminalisation mean? Criminalisation is the act of turning an activity into a criminal offence by making that activity illegal through creating laws about that activity. HIV criminalisation refers to the use of criminal and similar laws against people living with HIV based on their HIV-positive status. These involve activities like having sex, negotiating sex, breastfeeding and includes spitting or biting.
While spitting or biting are obviously actions or behaviours that anyone could agree is unacceptable, there is absolutely no danger of anyone getting HIV through saliva even when it contains small quantities of blood. Clinical studies looking at the risk of getting HIV through oral sex have not found any cases of HIV transmission. When these actions are criminalised, as they currently are in NSW, people living with HIV who spit at police can be forcibly tested and charged under the Mandatory Disease Testing Act 2021.
Technically, there are no HIV-specific criminal laws in Australia. However, there continue to be cases prosecuted based on general criminal laws which can be applied to people living with HIV. These are normally issues of assault, causing injury or bodily harm, and endangering life. For example, the NSW Consent Laws which commenced in 2022 after the NSW Crimes Act 1900 was updated, have the effect of potentially criminalising a person living with HIV with an undetectable viral load (and therefore cannot pass on HIV), if they say they are on PrEP or HIV negative.
In many countries, people living with HIV can be arrested and prosecuted for not disclosing they have HIV before they have sex with a partner. Thankfully in NSW, with the 2017 change to the Public Health Regulation 2022 (NSW), people living with HIV no longer have to disclose we have HIV to a sexual partner as long as we have taken ‘reasonable precautions’ which are spelt out in section 79 of the Public Health Act 2010.
Unfortunately here in Australia, women living with HIV who breastfeed still risk the intervention of Community Services and legal orders restricting breastfeeding (1999, Re: Baby A; 2006, Re: Elm). In fact, when women living with HIV choose to breastfeed their baby while on antiretroviral medication, with a suppressed viral load and supported by their medical professionals, the criminalisation of breastfeeding by people living with HIV is unjustified.
Worldwide and also here in Australia, HIV criminalisation impacts more people who are socially or economically marginalised especially women, migrants, trans and gender diverse people, people from cultural and linguistically diverse backgrounds and people at risk of violence. When a person living with HIV is concerned or frightened of what will happen to them under the law, or they risk arrest and prosecution, understandably they avoid drawing any attention to themselves that might suggest they have HIV.
It’s becoming increasingly accepted and understood that HIV criminalisation laws not only violate the human rights of people living with HIV, but undermine, restrict and deter people from testing for HIV, accessing treatment for their HIV, and talking openly with their doctors about HIV.
Increasingly, human rights bodies around the world recommend the removal of all HIV-specific criminal laws. Ideally, only intentional HIV exposure and deliberate or actual transmission of HIV would be a crime.
