People living with HIV

Each state and territory has different laws under which people may be prosecuted for transmitting or exposing others to HIV.

Criminal prosecution for HIV exposure or transmission is a key law reform priority for people living with HIV. There are generally few HIV-related reports in the media, and the profile given to criminal cases involving sexual transmission of HIV can fuel HIV-related stigma – for the HIV-positive person involved in the case and for people with HIV generally, particularly for gay men or people in a defendant’s migrant community. 

Criminal prosecution of people for sexual transmission of HIV or exposing someone to HIV is problematic because prosecutions:

  • Single out HIV as worse than other infectious diseases
  • Attribute blame to the individual accused - a message that runs counter to public health mutual responsibility messages
  • Ignore the fact that failure to disclose HIV status to a sexual partner is not necessarily uncommon
  • Can create fear of disclosure of risk behaviours to health care practitioners, which may affect individual’s treatment options as well as transmission risk
  • Increase stigma against people living with HIV and their communities.

HIV policy commentators argue that it is generally preferable to manage people whose behaviour places others at risk of HIV infection under Australia’s public health system, which includes legal mechanisms mandating safe behaviours or even detention.

See also: Reporting on criminal cases involving HIV transmission or exposure

Progress on criminalisation law reform  

Repeal of s19A, Victorian Criminal Code

As of May 2015, Victoria no longer specifically criminalises HIV, following the Victorian Parliament's repeal of section 19A of the Crimes Act 1958.

The now repealed s19A contained a specific offence of intentionally infecting another person with a 'very serious disease', defined exclusively to be HIV.

The maximum penalty for such an offence was 25 years imprisonment, the same as that for armed robbery or rape.

Repeal of the HIV/AIDS Preventive Measures Act 1993, Tasmania

In April 2015, Tasmania repealed the HIV/AIDS Preventive Measures Act 1993. According to the Tasmanian Government it was repealed in order to:

  • Simplify public health legislation
  • Remove obsolete provisions, language and procedures
  • Ensure Tasmania is acting consistently with best practice public health measures
  • Reduce stigma attached to HIV.

 

HIV and the law