Criminal prosecutions involving HIV: What is the policy agenda?
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Criminal prosecutions involving HIV: What is the policy agenda?

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An overview of policy issues related to Criminal prosecutions involving HIV transmission by Darryl O'Donnell, NSW Health. This presentation was given at AFAO's May 2009 General Meeting.

An overview of policy issues related to Criminal prosecutions involving HIV transmission by Darryl O'Donnell, NSW Health. This presentation was given at AFAO's May 2009 General Meeting.

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Criminal prosecutions involving HIV: What is the policy agenda? Criminal prosecutions involving HIV: What is the policy agenda? Presentation Transcript

  • Darryl O’Donnell Manager, HIV and Sexually Transmissible Infections Unit NSW Department of Health 8 May 2009 Criminal Prosecutions Involving HIV – What is the Policy Agenda? AFAO General Meeting and Workshop
  • Overview
    • Recent public policy responses
      • National Guidelines
    • Criminalisation – what do we mean?
    • Prosecutions – is there a trend?
    • Defining the policy response
    • Options for future community action
  • Recent Public Policy Responses
    • Griew Review
    • Trigger – Public health response in Victoria and South Australia
      • Not a “concern about increasing numbers of prosecutions”
    • Public questioning of sufficiency / effectiveness / competence of public health action
    • HIV is (still) different. Today, the difference is latent.
    • Blood-Borne Viruses and STIs Sub-Committee-led response
    • ‘ New’ distinction made between ‘unwilling’ and ‘unable’
    • Clearer protocols for referral to the police
    • Police action does not obviate public health action.
      • Parallel, distinct, independently operating systems.
    • Preserving public confidence via effective control is a shared interest
    View slide
  • National Guidelines
    • National Guidelines preserve (?and strengthen) underlying principles
      • voluntary testing;
      • non-exclusion from social and sexual activities;
      • responsibility for protecting self and others;
      • people with HIV are motivated to prevent transmission;
      • information, education and resources;
      • graded intervention avoiding premature escalation;
      • equitable and transparent dealing and review and appeal;
      • separation of public health and law enforcement.
    • Significant principles within the review context
    • [Not a stepwise approach, but the right measure relative to the assessed risk]
    • Endorsed by Australian Health Minister’s Conference
    • Guidelines as a recommitment to the effective Australian partnership approach
    • Guidelines do not suggest a shift to a most conservative posture
    View slide
  • Criminalisation
    • A verb. A process. But from what to what?
      • lawful to criminal?
      • rare / non-occurring to occurring?
      • un-prosecuted to prosecuted?
      • private to public?
    • What is the matter that is becoming criminal?
      • Sex by people with HIV? Unprotected sex by people with HIV?
      • (Failure to prevent / be responsible for) infection of others?
    • Who is criminalising this? Government? Police? Prosecution? Courts? How?
    • Who is being criminalised?
      • All people with HIV? Heterosexual people with HIV?
      • Transgressive people with HIV?
      • Is HIV a side matter?
        • ?Criminalisation of deception, intent to cause harm, failure to protect others
        • ?Affront to community norms (preponderance of heterosexual prosecutions)
    • What should be criminal? Does this match current law? Does this match current prosecutions?
  • Prosecutions
    • Increasing number of cases, but arguably not a singular trend
    • Vic: n=12 of 20, including all 7 Australian cases pre-2002. 2002 onwards – Vic: n=5; all other (n= ≤2 each)
    • Why the disproportionate prosecutions / continuation in Victoria?
    • Why the emergence of prosecutions elsewhere since 2007?
    • May require examination of individual cases (including trigger / pathway):
      • ?Increasing number of heterosexual infections
      • ?Earlier detection and increasing life expectancy of complainant and accused
      • ?Reduced stigma and shame for complainant
      • ?Increased awareness of rights at law
      • ?Co-incidence of HIV offences with other offences
    • Police action and successful prosecution requires a complainant.
    • Criminal law is not a public health instrument. What is its function?
    • Police and prosecutors are not responsible for public health.
    • But prosecutions (actually, media commentary) does impact on public health response. How?
  • Defining the Policy Response
    • Form follows function.
    • Is the ‘problem’ clear? Is it a single problem?
    • Either way, what is / are the problem to be solved?
      • Fewer offences?
      • Better legislation?
      • Fewer prosecutions?
      • Better / reduced media coverage of prosecutions?
    • Solution varies by problem.
    • Is the solution acceptable to your community / the wider community?
    • Who should take this action.
    • Legal advocacy / defence is different to community representation.
  • Policy Directions
    • Responding to Prosecutions / Criminalisation
    • What outcome would be achieved through increased cooperation between police and public health officials?
    • Less interaction / more separation of criminal and public health action may be desirable (anti-whole-of-Government).
    • Supporting public health action
    • Effective public health management can obviate referral to police
    • Unguided advocacy may re-position community from a partnering to adversarial role
    • Best public health outcomes will be achieved with community partners inside the problem
      • Complex needs and co-morbidities
      • Multiple disadvantage and marginality
      • Peer education and norms
      • Maximising graduation of escalation
      • Providing practical support
      • Community level action as a response to individual behaviour
      • Preserving a successful community-lead response to HIV
      • Contextualising risk in a context of personal and community commitment to prevention
    • Addressing jurisdictional variance – a continuing task.