HIV & The Law
A person with HIV who transmits the virus to
another, or exposes another person to the risk of HIV transmission, may
have broken the law. There are significant variations between state and
territory laws concerning disclosure of your positive HIV status to
sexual partners, and the possible penalties for HIV transmission.
Somewhat confusingly, there are potentially two types of laws involved.
These are the public health laws, and the criminal laws, of each state
and territory. The following is a brief outline of the relevant laws in
each state and territory.
Tasmania
•
Public health law: An HIV-positive person must take "all reasonable
measures and precautions" to prevent the transmission of HIV to others,
and must not knowingly or recklessly place another person at risk of
contracting the disease. Maximum penalty: a fine of up to $10,000, or
imprisonment for one year. If an HIV-positive person is charged with an
offence under this law, it is a defence for the HIV-positive person to
prove that the other person knew of, and voluntarily accepted, the risk
of contracting HIV.
• Criminal law: A person who causes grievous bodily harm to a person by
any means is guilty of a crime. Maximum penalty: imprisonment for 21
years. It is possible this law could be used to charge an HIV-positive
person for transmitting HIV to another person, although no such
prosecutions are known to have taken place.
South Australia
•
Public health law: A person with a "controlled notifiable disease"
(which includes HIV) must take all reasonable measures to prevent
transmission of the disease to others. Maximum penalty: a fine. The law
does not specifically require a person with HIV to disclose their HIV
status to a prospective sexual partner.
• Criminal law: A person who recklessly endangers another person’s life
is guilty of a criminal offence. Maximum penalty: 15 years imprisonment.
It is possible this law could be used to charge an HIV-positive person
for transmitting HIV to another person, although no such prosecutions
are known to have taken place to date.
New South Wales
•
Public health law: A person who knows they have a sexually transmissible
medical condition (which includes HIV) is guilty of an offence if he or
she has sexual intercourse with another person unless, before
intercourse takes place, the other person has been informed of and
voluntarily accepts the risk of contracting the sexually transmissible
medical condition. Maximum penalty: a $5000 fine.
• Criminal law: A person who maliciously causes another person to
contract a "grievous bodily disease" (which includes HIV), is guilty of
a crime. Maximum penalty: 25 years imprisonment.
Victoria
• Public health law
in Victoria does not specifically require an HIV-positive person to
disclose their HIV status before having sex. The law states that a
person must not knowingly or recklessly infect another person with an
infectious disease. Maximum penalty: a fine of $20,000. In addition, it
is a defence to a charge under this law, to show that the person who
becomes infected with the infectious disease knew of and voluntarily
accepted the risk of infection.
• Criminal law: A person who intentionally causes another person to be
infected with a "very serious disease" (which includes HIV) is guilty of
a crime, and liable to a maximum penalty of imprisonment for up to 25
years. In Victoria, the offence of "conduct endangering life" has been
used to charge HIV-positive people who place others at risk of HIV
infection. This charge carries a maximum penalty of 10 years
imprisonment.
Queensland
•
Queensland public health law does not specifically require an
HIV-positive person to disclose their HIV status before having sex. The
law makes it an offence to deliberately or recklessly infect another
person, or to place them at risk of infection. Maximum penalty: a fine
of $20,000, or imprisonment for two years. It is a defence to such a
charge if the other person knew of and voluntarily accepted the risk of
infection.
• The criminal law provides that a person who transmits a serious
disease (including HIV) to another person is guilty of a crime. Maximum
penalty: life imprisonment.
Western Australia
•
Western Australian public health laws have not been updated since the
early 20th century, and are largely irrelevant to the HIV epidemic. In
that state, it is an offence for a person with an infectious disease to
"wilfully expose" themselves in any public place, without taking proper
precautions against the spreading of infection. Because HIV is not
transmissible through casual social contact, this law has no real
meaning in relation to the sexual transmission of HIV.
• Criminal law: a person who does any act that is likely to result in
another person contracting a serious disease (which includes HIV), is
guilty of a crime. Maximum penalty: imprisonment for 20 years.
• Prosecutions for knowingly infecting another with HIV have been
successful in Western Australia based on the offence of inflicting
grievous bodily harm.
Australian Capital Territory
•
Public health law: there is no specific legal obligation on HIV-positive
people to disclose their status before having sex.
• Criminal law: It is an offence to intentionally or recklessly inflict
grievous bodily harm on another person. Maximum penalty: imprisonment
for 15 years. It is possible that this law could be used to prosecute an
HIV-positive person for transmission of HIV, but there have never been
any such prosecutions in the ACT.
Northern Territory
•
There are no public health laws dealing with HIV transmission or
disclosure of HIV status in the Northern Territory.
• Criminal law: it is an offence to do grievous bodily harm to another
person. Maximum penalty: imprisonment for life. It is also an offence to
endanger another person’s life. Maximum penalty: imprisonment for 10
years. It is possible that these laws could be used to prosecute an
HIV-positive person for transmission of HIV. One prosecution was
commenced, but there have been no such prosecutions successfully
completed in the Northern Territory.
*information courtesy of Think Again website.