Criminal Law

Generally, criminal law offences carry greater punishment than public health offences even though comparable behaviours may be targeted. Criminal proceedings are usually brought by police or public prosecutor, whereas public health actions are generally initiated by a Chief Health Officer.

There is no centralised record of people prosecuted for transmitting, or exposing others to, HIV in Australia, so the exact number of cases remains unknown. Best efforts put the number of prosecutions at 31, with a handful of those cases being dropped pre-trial or dismissed (as at 1 Feb 2011). That number represents only a tiny percentage of the 28 000 people diagnosed with HIV in Australia (as at December 2009).

The first HIV transmission or exposure case known to have proceeded through a committal hearing was that of a man charged with reckless endangerment offences for having unprotected sex with a woman without disclosing his HIV status (Queen v. PD, 1992). The accused was ordered to stand trial but died from an HIV-related illness before the trial commenced (Ward 1 1998). The first decision relating to HIV exposure risk was that in R v. B, concluded in 1995. The first decision on HIV transmission was made in DPP v. F in 1998. Prosecutions before 2001 were uncommon, with almost all cases run in Victoria, and guilty decisions recorded and upheld in only three of the eleven known cases).

Prosecutions have now been held in six of eight jurisdictions. Since 2004, cases have occurred more often, with a notable national increase in prosecutions since 2007. The issue of HIV criminality linked to sexual acts has moved from being theoretical to actual.

Chart 1 assigns Australian cases according to the year each prosecution was concluded. Unfortunately, it is not possible to compile data according to the year in which cases were initiated (arguably a more accurate reflection of the application of criminal laws by year), as this information is not available for all cases. Of those cases pending, two of those cases were commenced in 2012 and one in 2013.

As the total number of prosecutions has increased, so too has the range of situations in which charges have been made. Of the 43 people known to have been charged, 42 were male. The only woman charged was prosecuted in 1991 in relation to sex work. She was not convicted. In some instances, information about the circumstances of the case is no longer available, however, it is known that 20 cases have involved the accused having sex with female persons, and 17 involved the accused having sex with men. Some accused have been charged in relation to a single sexual contact, others in relation to more than one contact. Some cases involve short-term liaisons and others involve long-term relationships which the aggrieved party believed to be monogamous. A number of cases have been linked to charges of sexual assault or child sexual assault.

It is understood that the majority of criminal charges involving HIV transmission have arisen following investigation of complaints from HIV-positive people, although some have arisen through referral from health authorities (with additional cases being pursued after an instance of Victorian Police seizing health department files). Police are required to consider complaints by an aggrieved party, and to investigate them if they believe the complaint has substance. Prosecutors may gain access to medical files through subpoena.

Resources

For more information on criminal prosecutions for HIV exposure and transmission see:
  • Groves A, Cameron S. Discussion paper. Criminal prosecution of HIV transmission: the policy agenda. Sydney: Australian Federation of AIDS Organisations 3; 2009.
  • Cameron S, Rule J, editors. The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality. Sydney:National Association of People Living with HIV/AIDS 4; 2009.
State Information
+ ACT
Jurisdiction
Section of Act
Penalty
Charge Applied
Crimes Act 1900

Section 19

Intentionally causing grievous bodily harm

15 years imprisonment or 20 years in aggravated circumstances

No

 

Section 20

Recklessly causing grievous bodily harm

2 years imprisonment

No

 

Section 25

Causing grievous bodily harm by any unlawful or negligent act or omission

2 years imprisonment

No

 

Section 54

Sexual intercourse without consent and being reckless as to whether consent was given

12 years imprisonment or 14 years if offence committed in company of another person

No

+ NSW
Jurisdiction
Section of Act
Penalty
Charge Applied
Crimes Act 1990

Section 33

Inflicting grievous bodily harm with intent

25 years imprisonment

No

 

Section 35

Recklessly inflicting grievous bodily harm

14 years imprisonment

10 years imprisonment

No

Yes

 

Old section 35

Malicious infliction of grievous bodily harm

7 years imprisonment

Yes

 

Section 39

Intention to injure by poisoning

10 years imprisonment

No

 

Section 54

Causing grievous bodily harm by unlawful or negligent act or omission

2 years imprisonment

No

 

Section 61I

Having sexual intercourse with a person without consent is sexual assault

14 years imprisonment

No

 

Section 344A

Attempting to commit any offence under the Act

Same penalty as the actual offence

No

+ NT
Jurisdiction
Section of Act
Penalty
Charge Applied
Criminal Code

Section 174C

Recklessly endangering life

10 years imprisonment

14 years for an aggravated offence

No

 

Section 174D

Recklessly endangering serious harm

7 years imprisonment

10 years for an aggravated offence

No

 

Section 174E

Negligently causing serious harm

For s174 offences, conduct endangering life includes exposing a person to the risk of catching a disease that may give rise to danger of death or serious harm. Conduct gives rise to a danger of death or serious harm if it is ordinarily capable of creating a real, and not merely a theoretical, danger of death or serious harm

10 years imprisonment or 14 years for an aggravated offence

No

 

Section 177

Intending to cause serious harm and causing harm by any means

Life imprisonment

No

 

Section 181

Unlawfully causing serious harm to another

14 years imprisonment

No

 

Section 192

Sexual intercourse without consent

Life imprisonment

No

+ QLD
Jurisdiction
Section of Act
Penalty
Charge Applied
Criminal Code 1989

Section 317(b)

Any person who, with intent to cause grievous bodily harm or transmit a serious disease, and who does grievous bodily harm or transmits a serious disease to any person

Life imprisonment

Yes

 

Section 320

Unlawfully causing grievous bodily harm to another

14 years imprisonment

No

 

Section 349

Having carnal knowledge of another person without their consent is rape

Life imprisonment

No

+ SA
Jurisdiction
Section of Act
Penalty
Charge Applied
Criminal Law Consolidation Act 1935

Section 29(1)

Doing an act or omission knowing that the act or omission is going to endanger the life of another, and intending to endanger the life of another or being reckless as to whether the life of another is endangered

15 years imprisonment or 18 years if the offence was aggravated

Yes

 

Section 29(2)

Doing an act or omission knowing that the act or act or omission is likely to cause serious harm to another and intending to cause such harm, or being reckless as to whether such harm is caused

10 years imprisonment or 12 years if the offence was aggravated

No

+ TAS
Jurisdiction
Section of Act
Penalty
Charge Applied

Section 170

Intentionally maiming, disfiguring or disabling or causing grievous bodily harm to any person, by any means whatever

21 years imprisonment at discretion of judge for all offences

No

 

Section 172

Causing grievous bodily harm to any person by an means whatever

21 years imprisonment, at discretion of judge for all offences

No

 

Section 185

Having sexual intercourse with another person without their consent

21 years imprisonment, at discretion of judge for all offences

No

+ VIC
Jurisdiction
Section of Act
Penalty
Charge Applied
Crimes Act 1958

Section 16

Intentionally causing serious injury to another person

20 years imprisonment

Yes

 

Section 17

Causing serious injury recklessly

15 years imprisonment

No

 

Section 18

Causing injury recklessly

Causing injury intentionally

5 years imprisonment

10 years imprisonment

No

 

Section 19A

Intentionally causing a very serious disease (which is defined to mean HIV); penalty 25 years maximum

25 years imprisonment

Yes

 

Section 22

Reckless conduct placing another person in danger of death

10 years imprisonment

10 years imprisonment

 

Section 23

Reckless conduct that places or may place another person at risk of serious injury

5 years imprisonment

Yes

+ WA
Jurisdiction
Section of Act
Penalty
Charge Applied
Section 266

Every person who has in his charge or under his control a dangerous thing, must use reasonable care and precautions to avoid endangering the life, safety or health of any person

Depends on consequence of actions

No

 

Section 20

Recklessly causing grievous bodily harm

2 years imprisonment

No

 

Section 294

Intentionally doing any act likely to result in a person having a serious disease

20 years imprisonment

No

 

Section 297

Unlawfully causing grievous bodily harm to another person

If done in circumstances of aggravation

10 years imprisonment

14 years imprisonment

Yes

 

Section 325

Unlawfully causing grievous bodily harm to another person

If done in circumstances of aggravation

14 years imprisonment

No


1Ward C.HIV-positive man charged with “reckless conduct” after unprotected sex. HIV/AIDS Legal Link 9 (2), Australian Federation of AIDS Organisations, 1998.

2Cameron S. HIV, Crime and the Law in Australia: Options for Policy Reform – a law reform advocacy kit, Australian Federation of AIDS Organisations, 2011 at http://www.afao.org.au/__data/assets/pdf_file/0018/4536/DP0211_HIV_Crime_and_the_Law.pdf

3Groves A, Cameron S. Discussion paper. Criminal prosecution of HIV transmission: the policy agenda. Sydney: Australian Federation of AIDS Organisations; 2009. Available athttp://www.afao.org.au/__data/assets/pdf_file/0013/4522/DP09_Criminal_Prosecution.pdf (last accessed November 2012).

4Cameron S, Rule J, editors. The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality. Sydney:National Association of People Living with HIV/AIDS; 2009. Available at http://napwa.org.au/papers/2009/the-criminalisation-of-hiv-transmission-in-australia-legality-morality-and-reality (last accessed November 2012).

5Woodroffe M. Criminal transmission of HIV in Australia. In: Cameron S, Rule J, editors. The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality, Sydney:NAPWA; 2009. p. 60-73.

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