Author Topic: Discussion Paper on HIV Criminalisation in WA  (Read 885 times)


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Discussion Paper on HIV Criminalisation in WA
« on: August 12, 2018, 02:33:14 PM »
HIV Institute of WA: Discussion Paper on HIV Criminalisation in Western Australia.

"These laws have no effect on the HIV epidemic other than to destroy the lives of people coming into contact with the criminal justice system. People are still under the assumption that HIV will kill, and that is simply inaccurate. While HIV is still a serious, chronic condition, we know it's really HIV stigma that kills — the stigma is why people don't get tested and partly why people don't stay in care."
Joshua Rich, (2017) “UCLA Law team makes successful case for decriminalizing HIV transmission”. From:

10 August 2018

HIV in Western Australia should be managed as a public health issue and not be treated as a criminal offence. The HIV Institute is asking on behalf of Positive People in WA, for the Western Australian Government to review the current criminal codes that criminalise HIV and how the law is applied and make law reform in this area. There should be greater clarity in the Western Australian Health Act in regards to HIV transmission and notification. The current laws that criminalise HIV were made at a time when HIV/AIDS was deemed a terminal transmittable STI.

The WA Health Act states: “A person who has a notifiable infectious disease must take all reasonable precautions to ensure that others are not unknowingly placed at risk of contracting the disease”. What exactly constitutes reasonable practices is unclear and should not be left up to the courts to decide in isolation.

While no criminal laws in Western Australia target HIV specifically, it can be prosecuted under assault-based offences, which carry multi-year prison sentences. While usually only applied to individuals that intentionally transmit HIV, it can be used against those that are only deemed negligent in their exposure. Laws on HIV need to be brought in line with the proven medical advances such as U=U (Undetectable = Untranslatable ) and the availability of PrEP medication for non positive people which protects them from contracting HIV, this is now listed on the PBS.

In many instances, laws that criminalise HIV are exceedingly vague or broad — either in their wording, or in the way they have been interpreted and applied. This opens the door to a host of potential human rights violations against people living with HIV. (1)

The changing nature of the HIV Epidemic is summed up in the following quote: “Australia's peak AIDS organisations and scientists have announced an end to the AIDS epidemic, as the country joins the few nations in the world to have beaten the syndrome. The number of annual cases of AIDS diagnoses is now so small, top researchers and the Australian Federation of Aids Organisations have declared the public health issue to be over”. (2)

Reform is needed to bring Western Australia into line with world’s best practice on HIV:

1. We ask for a review on how the law is applied to HIV in Western Australia by the state Attorney General's office in consultation with the affected community and relevant organizations which would update the laws in line with medical advances in the treatment of HIV, that is now standard best practice in Western Australia.

A broad consolation process with the community with, updated health and science in regards to HIV, can be used as a strategy with which to educate people who have reservations about changing the health act.

2. Establish improved protocols between the police, public prosecutors and public health to ensure that alleged cases of HIV exposure or transmission are managed through the public health system and not through the criminal justice system.

3. HIV should be managed the same as other STIs within the Health Act. There is scope for a review of the existing management of STI prevention and education, however, criminal penalties should be reserved for rare cases of intentional, without consent, malicious transmission of any STI. It is notable that Drug resistant strains of STIs and High rates of syphilis are not prosecuted in the same way that laws are applied to HIV.

4. Repealing sections of the criminal code that criminalise HIV by applying grievous bodily harm laws. The justice and police system would benefit from there being a public consensus from the health care system. Education would assist the courts in complex matters.

The Evidence

Today, those with an undetectable viral load are un- infectious and do not transmit HIV yet no court in Western Australia has ruled that this satisfies the reasonable precautions test. This ambiguity is concerning and can leave many unclear on whether they could face criminal charges and is open to abuse in domestic violence settings.

The science is clear: When taking effective anti-HIV medication, a person living with HIV cannot transmit the virus to a sexual partner. If they are pregnant, the chance that their baby will acquire HIV during birth can drop to less than one percent.

2018 Amsterdam AIDS CONFERENCE Expert Consensus Statement co-author and IAS President Linda-Gail Bekker said. “In many cases, these misconceived laws exacerbate the spread of HIV by driving people living with and at risk of infection into hiding and away from treatment services.”

The statement stresses that:
There is no possibility of HIV transmission via contact with the saliva of an HIV-positive person, including through kissing, biting or spiting.
The risk of transmission from a single act of unprotected sex is very low, and there is no possibility of HIV transmission during vaginal or anal sex when the HIV-positive partner has an undetectable viral load.
It is not possible to establish proof of HIV transmission from one individual to another, even with the most advanced scientific tools.

Limited understanding of current HIV science reinforces stigma and can lead to miscarriages of justice while undermining efforts to address the HIV epidemic. In the accompanying editorial, JIAS Editor-in-Chief Kenneth Mayer and colleagues wrote, “specific laws focusing on HIV criminalization, and misuse of other laws despite the evidence against the likelihood of HIV transmission, reflect the perpetuation of ignorance, irrational fear and stigmatization.” (3)   

In the Medical Journal of Australia, Boyd et al state: “Criminal cases involving human immunodeficiency virus transmission or exposure require that courts correctly comprehend the rapidly evolving science of HIV transmission and the impact of an HIV diagnosis. Caution should be exercised when considering charges or prosecutions regarding HIV transmission or exposure because:

Scientific evidence shows that the risk of HIV transmission during sex between partners of different HIV serostatus can be low, negligible or too low to quantify, even when the HIV-positive partner is not taking effective antiretroviral therapy, depending on the nature of the sexual act, the viral load of the partner with HIV, and whether a condom or pre-exposure prophylaxis is employed as safer sex practices to reduce risk.

Changes in management as a result of the consensus statement: Given the limited risk of HIV transmission per sexual act and the limited long term harms experienced by most people recently diagnosed with HIV, appropriate care should be taken before HIV prosecutions are pursued. Careful attention should be paid to the best scientific evidence on HIV risk and harms, with consideration given to alternatives to prosecution, including public health management”. (4)

According to NAPWHA, “HIV criminalisation is a term that describes the unjust use of the criminal law (or similar laws, such as public health, civil and/or administrative law) to punish and control the behaviour of people living with HIV based on their HIV status. Behaviour in these cases is most often consensual in nature. This can happen through HIV-specific criminal statutes, or by applying general criminal laws governing offences such as assault (including sexual assault), reckless endangerment, or even attempted murder, to instances of potential or perceived exposure to HIV. Use of the law in this way ignores robust and widely available scientific and medical evidence related to HIV and its transmission, and to the realities of living with HIV in the modern era of the epidemic”. (5)

HIV criminalisation undermines the HIV response by compromising public health prevention programs while denying the human rights of people living with and affected by HIV. There seems to be no evidence of any broader social benefit that comes from inherently unjust laws.

According to the The New Zealand HIV and Criminal Law Research Paper, “Social attitudes, a strong scientific consensus and public health messages contribute to a shift in the definition of safer sex. In 2017, UNAIDS released a statement supporting U=U. This mirrors an internationally endorsed consensus statement. Condom-less anal intercourse may no longer be considered unsafe; PrEP and [+u] are equally effective prophylactics against HIV infection. Among MSM, although not a holistic replacement for condoms, PrEP makes condom-less anal sex safe from HIV transmission. Solely promoting condom use is becoming obsolete as a public health strategy. To adapt to the reality of sexual behaviour: sexual health cannot discount pleasure as a reason for not using condoms. Condom-less sex with [+u] and PrEP obviously does not protect against all STIs. However, the HIV-targeted strategy now heavily relies on treatment as prevention (TasP), and encouraging testing, which contrasts with the previous approach which focused on regulating social behaviour around condoms. This is a strong move into the “social/no-fault” health model.  Laws that try to regulate behaviour through deterrence therefore no longer matches the reality of sexual health strategy.”  (6)

One of the biggest pitfalls of criminalisation is that “Some laws can create unnecessary barriers to ending the HIV epidemic. These laws – such as those criminalising the behaviour and conduct of men who have sex with men (MSM), transgender people, sex workers and people who inject drugs – drive the people who are most vulnerable to HIV away from the health and social services that could protect them. HIV treatment today can reduce an individual’s infectiousness to almost zero. Therefore, there are clear public health benefits to ensuring that those most affected by HIV are encouraged to participate in voluntary testing and supported with appropriate treatment. This requires creating a conducive legal environment. In marginalising or criminalising the conduct of vulnerable groups, also known as “key populations”, nations not only neglect the health and human rights of individuals but also weaken the wider AIDS response”. (7)

In 2008, UNAIDS recommended that states issue guidelines to limit police and prosecutorial discretion in application of criminal law e.g. by clearly and narrowly defining ‘intentional’ transmission. The 2018 Amsterdam AIDS Conference stated “Simply put, HIV criminalisation laws are ineffective, unwarranted and discriminatory.” (3)

There needs to be a broad community response and including the principle of the Meaningful Involvement of Positive People (MIPA) and consultation with community peer based groups at the grassroots level as well as HIV professionals and funded advocates .

“It will need to involve public health officials and legal officers, community and government, informed by behavioural and scientific research, banding together to formulate a sophisticated response. It will require us to study the differences across our various state and territory legislations to arrive at and support a nationally consistent procedure”. (08)

The principle of grassroots and MIPA should not be overlooked in the review process. The aim should be to reach a Community Consensus so the outcome, a just, equitable and workable legislation, with multi-party support, can happen.

Glenn Betteridge of the Ontario Working Group in Criminal Law and HIV Exposure stated that “a lack of understanding of the science of HIV risk and HIV disease has led to a proliferation of problematic laws and prosecutions worldwide. “Science has played an inordinate role in this miscarriage of justice,” he said.

Betteridge outlined three major problems with the legal system’s engagement with HIV science. Firstly, he said there was a lack of understanding of the meaning of an HIV diagnosis, with courts around the world continuing to treat HIV as a ‘death sentence’ despite scientific evidence around improved treatment outcomes. “In place of science, we find AIDS-phobia, prejudice, hysteria even, and this increases stigma against PLHIV.” (9)

Repealing and replacing sections of the current criminal code which criminalises HIV with laws modelled on those already adopted in other countries, would enable police, prosecutors and health authorities to work together to ensure that, wherever appropriate, people who are subject to allegations of HIV transmission or exposure are managed within the public health system.

HIV criminalisation laws are often framed as being aimed to protect innocent victims from dishonest partners but are often used to threaten and victimise the Positive Person in the relationship, in which the perpetrator uses the system to portray themselves as a “victim”. Laws that criminalise HIV exposure do not protect women or men from malicious misuse when they become a weapon to control and abuse partners. All people living with HIV may face violence if they disclose their HIV status, but risk arrest and prosecution if they do not disclose — or when they do disclose, their partner may claim they did not. Many people have been investigated, detained, arrested or sent to prison based on accusations by former partners who used HIV criminal laws as a tool of harassment or control, often after an attempt to end a violent of abusive relationship.

There are many studies from Australia and Overseas relating to Domestic Violence and HIV/AIDS which describe the link between HIV Status and Domestic Violence for example in the following quote from the New York Office for the Prevention of Domestic Violence: “There are a variety of ways that domestic violence may put victims of domestic violence at risk of contracting HIV/AIDS; ways in which abusers use their own or the victim's HIV+ status as a weapon of coercion; and additional obstacles to health and safety that exist for HIV+ people who are also victims of domestic violence”. (10)

The criminalisation of HIV is often a factor in Domestic Violence and Stalking situations and is used by perpetrators to abuse partners. This is a huge problem that has not been addressed and the abusive effect of Fake claims, are made worse by criminalisation and the threat of prosecution which is wielded by abusers. For example: “WHV noted that one form of violence which is specific to GLBTI relationships is the abusive partner ‘outing’ or threatening to ‘out’ their partner to family, friends, colleagues or the general community (WHV 2009); similar issues may arise in terms of disclosing HIV positive status (Chan 2005). Irwin (2008: 208) found that the lesbians she interviewed were unsure about ‘what was acceptable, unacceptable or normal behaviour’ in such relationships”. (11)

Most laws require only that a person knew their HIV status before contact for a successful prosecution. This effectively punishes a person living with HIV for the health-seeking action of knowing their HIV status, and can result in a “he said/she said/they said” battle in court, in which the person who knows their HIV-positive status usually loses. There is a perceived culture which sees that it is easy for the justice system to make a judgement that the positive person is guilty. If someone does make a complaint to the police, the culture of stigma and discrimination surrounding HIV, places the positive person guilty before innocent in the “Court of Public Opinion” which justifies Invasions of Privacy and Breaches of Human Rights.

There is no evidence that HIV criminalisation laws deter behaviour that can transmit HIV, or reduce the number of new HIV cases. Further, by making it illegal for a person with HIV to have sex without disclosing their status, HIV criminalisation delivers the inaccurate message that all people with HIV are inherently dangerous, and that an adequate prevention strategy is to rely on partners to disclose and avoid those who share the information that they are living with HIV. This overlooks the fact that grassroots HIV+ people are at the forefront, leading the prevention that has stopped AIDS in WA.

A recent report by the World Health Organisation titled ‘Sexual Health, Human Rights and the Law’, found that the criminalisation of unintentional HIV transmissions increase the stigma surrounding HIV and reduce incentives for those who may be living positively to seek treatment and get tested. This report and additional research have led other countries to decriminalise and reduce the punishments associated with unintentional expose.

HIV criminalisation is a term that describes the unjust use of the criminal law (or similar laws, such as public health, civil and/or administrative law) to punish and control the behaviour of people living with HIV based on their HIV status. Behaviour in these cases is most often consensual in nature. As Miyashita in Arkles, 2017, states: "These laws have no effect on the HIV epidemic other than to destroy the lives of people coming into contact with the criminal justice system," Miyashita added. "People are still under the assumption that HIV will kill, and that is simply inaccurate. While HIV is still a serious, chronic condition, we know it's really HIV stigma that kills — the stigma is why people don't get tested and partly why people don't stay in care."

The law needs to reflect the fact that self care should be a mutual, shared responsibility. Funded advocates need to develop a broad culture in which HIV negative people do not rely solely on Positive People to look after their health in regards to all STI and Blood Borne Virus transmission. One of the features of the HIV Epidemic that is often overlooked is the way in which Positive People have managed their health and effectively limited the spread of the epidemic in Western Australia.

Decriminalisation of HIV in Western Australia would help remove the stigma of HIV being a criminalised condition for Positive People and would decrease community fear and the discrimination that still surrounds HIV, and lead to better education and a more informed public, while making for a fairer legal system for Positive People too.

To be an Independent Voice for HIV people and families in Western Australia, to promote a state where people with HIV and their families can live their lives to their full potential, free from discrimination and stigma.

HIV Institute of Western Australia is a peer-led organisation for all people affected with HIV in WA. The HIV Institute of W.A mission is to provide advocacy, services, leadership and representation across the diverse needs of all people affected by HIV in Western Australia.


(1) Ford, Olivia. (2018)  Fighting for HIV Justice, From:

(2) SMH (2016) Health organisations declare AIDS epidemic is 'over' in Australia, From:

(3)  Amsterdam AIDS Conference Consensus Statement (2018) 20 of the world’s leading researchers say scientific evidence does not support HIV criminalization laws From:

(4) Mark Boyd, David Cooper, Elizabeth A Crock, Levinia Crooks, Michelle L Giles, Andrew Grulich, Sharon R Lewin, David Nolan and Trent Yarwood “Sexual transmission of HIV and the law: an Australian medical consensus statement” Med J Aust 2016; 205 (9): 409-412. Medical Journal of Australia

(5)  NAPWHA “The criminalisation of HIV transmission in Australia: legality, morality and reality” from:

(6)  University of Auckland Faculty of Law. (2017) The New Zealand HIV and Criminal Law Research Paper. PDF Download Available here:

(7) Inter Parliamentary Union (2013) Effective Laws to End HIV and AIDS: Next Steps for Parliaments From:

(08) Ogier, A (2011) Unlawful intentions from:

(9) Kidd, P. (2010) AIDS 2010: Science and the law in HIV criminalisation. From:

(10) Office for the Prevention of Domestic Violence. (2016) Domestic Violence and HIV/AIDS. From:

(11) Center for American Progress (2011) Domestic Violence in the LGBT Community. From:

(12) World Health Organisation (2015) ‘Sexual Health, Human Rights and the Law’ From:

(13) Joshua Rich, (2017) “UCLA Law team makes successful case for decriminalizing HIV transmission”. Download pdf From:
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Discussion Paper on HIV Criminalisation in WA
« on: August 12, 2018, 02:33:14 PM »