Guide to Australian HIV Laws and Policies for Healthcare Professionals
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 53. That number represents only a tiny percentage of the 24645 people diagnosed with HIV in Australia (as at December 2018).
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 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 occurred in all eight state and territories. 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, until 2013. 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. Since the publishing of the data in the Chart 1, there have been at least a further eight prosecutions initiated, with at least two resulting in jail convictions.
As the total number of prosecutions has increased, so too has the range of situations in which charges have been made. Of the 51 people known to have been charged, 50 were male. There was the case of a transgender woman who was given a sentence in WA for six years on a charge of grievous bodily harm. The court has required her to serve her sentence in a men’s prison. The only cisgender 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. In the cases where gender of the partners has been reported, about half of the cases have involved accused having sex with female persons and half 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.
There has been some recognition of the effectiveness of ARV treatments, when weighing the severity of transmission of HIV. Regulations in NSW now recognise that being on treatment with an undetectable viral load is a reasonable precaution. In one Queensland case the judge acknowledged HIV was no longer as serious an illness as it had been in the past, and could be treatment with a “single pill each day….Life expectancy has dramatically increased” At the time of writing there are no known cases that have dealt with the issue of Treatment as Prevention (TasP).
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.
For more information on criminal prosecutions for HIV exposure and transmission see:
- Cameron S, Discussion Paper. HIV, Crime and the Law in Australia: Options for Policy Reform – a law reform advocacy kit. Sydney: Australia Federation of AIDS Organsiations 2011.
- Groves A, Cameron S. Discussion Paper. Criminal prosecution of HIV transmission: the policy agenda. Sydney: Australian Federation of AIDS Organisations; 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; 2009.