An overview of the issues related to the criminalisation of HIV exposure and transmission in Australia. This presentation was given by Sally Cameron, HIV Education and Health Promotion Officer with AFAO, at the AFAO National HIV Forum, 17 October 2014.

1. Law and HIV:
Are we there yet?

2. Current Legal Framework
 Notifiable but records are coded
 Testing requires informed consent
 Anti-discrimination legislation is in place (PLHIV,
believed to have HIV, & those who associate)
 Treatments are subsidised through listing on PBS
 You can be prosecuted and go to gaol if you have
sex with someone without disclosing HIV+

3. Prosecutions seem to be increasing

4. Exposure (non-transmission) is prosecuted
 1/3 of prosecutions for exposure
 16 transmission/8 exposure (+ 5 public health order cases)

5. Those found not-guilty still pilloried in the press

6. MSM prosecutions increasing

7. African born men overrepresented

8. Why is criminalisation problematic?
 Conflates risk of harm with risk from other types of
assault
 Considers ‘harms’ of HIV infection to be devastating
 Fails to weigh up the risk of harm with the severity of
the harm – basic premise of criminal law
 Ignores that unprotected sex not uncommon (1000
new infections/year)
 Penalties are excessive

9. Why is criminalisation problematic?
 Does nothing to decrease risk taking/increase
disclosure
• Condom use with casual sexual partners is less likely following
disclosure CSRH E-male study)
• no difference between disclosure rates of HIV+ men from NSW
compared to others (CSRH Stigma Study- 1200 MSM)
 Undermines public health initiatives
• Undermines messages of mutual responsibility
• Creates expectation people will disclose
• Creates expectation people will be punished

10. Why is criminalisation problematic?
 Reduces trust in healthcare practitioners
 Spreads misinformation about HIV
 Reinforces stigma surrounding HIV
- reliance on disclosure to reduce risk increases stigma and
discrimination (Stigma Study)
 Is too arbitrary/cultural filtering

11. So what tools can we use to
advocate for change?
International Support

12. How should Aust deliver on international
commitments?

13. UNPD
78. Commit to review …laws and policies that adversely affect … delivery of HIV …
programmes to PLHIV (in accordance with relevant national review frameworks and
time frames)
80. Commit to national HIV strategies that promote and protect human rights,
including programmes aimed at eliminating stigma and discrimination against PLHIV,
including by:
sensitizing the police and judges
training health-care workers in non-discrimination, confidentiality and informed
consent
supporting national human rights learning campaigns
legal literacy and legal services
monitoring the impact of the legal environment on HIV prevention, treatment,
care and support

14. UNAIDS Guidance: Ending overly broad criminalization
of HIV non-disclosure, exposure and transmission:
Critical scientific, medical and legal considerations
Recommends “limiting the application of criminal law to
cases of intentional transmission (i.e. where a person knows
his or her HIV-positive status, acts with the intention to
transmit HIV, and does in fact transmit it)”.
Countries should develop and implement prosecutorial and police
guidelines to clarify, limit and harmonise any application of criminal law
to HIV.

15.  Domestic Support

16. MACBBVS Legal Working Group
 Set of seven papers on the impact of discrimination
and criminalisation on public health approaches to
BBV and STI prevention and treatment - including
recommendations for law and policy reforms

17. Melbourne Declaration
Action Area 4:
Strengthen the partnership response and enabling
environment
Incorporate MACBBVS Legal Working Group
recommendations into the 7th National Strategy
Remove HIV criminalisation and disclosure
requirements

18. Seventh National HIV Strategy
The Strategy has six objectives:
reduce HIV
reduce the risk behaviours
decrease undiagnosed HIV infection
increase treatments (UVL)
improve quality of life of PLHIV
eliminate the negative impact of stigma, discrimination, and
legal and human rights issues on people’s health

19. Seventh National HIV Strategy
Objective Indicator
Reduce incidence of HIV • Incidence of recent HIV infection among HIV diagnoses
• Estimated incidence of HIV
Reduce risk behaviours
associated with transmission
of HIV
• Proportion of gay men who have engaged in unprotected anal intercourse with
casual male partners in the previous six months
• Proportion of people who inject drugs reporting re-use of someone else’s needle
in previous month
Decrease number of people
with undiagnosed HIV
infection
• Proportion of gay men who have been tested for HIV in the previous 12 months
• Proportion of people who inject drugs who have been tested for HIV in the
previous 12 months
• Median CD4 count at HIV diagnosis
Increase proportion PLHIV on
treatments with undetectable
viral load
• Proportion of people living with diagnosed HIV who are receiving antiretroviral
treatment
• Proportion of people receiving antiretroviral treatment for HIV infection whose
viral load is less than 50 copies/mL
Improve quality of life of
PLHIV
• Proportion of people with HIV who report their general health status and their
general wellbeing to be excellent or good
Eliminate the negative
impact of stigma,
discrimination, and legal
and human rights issues
on people’s health

20. 7.5 Enabling Environment
Priority Actions
Eliminate stigma and discrimination in community and
healthcare settings and empower priority populations.
Remove institutional, regulatory and systems barriers to
equality of care for people infected and affected by HIV in
the health sector.
Work towards addressing legal barriers to evidence-based
prevention strategies across jurisdictions.
Establish a dialogue between health and other sectors
aimed at reducing stigma and discrimination against HIV-infected
and affected individuals and communities.

21. Seventh National HIV Strategy
Implementation of this Strategy rests within the health
system. However, many of the barriers … fall outside
the responsibility of the health system.
For example, criminalisation impacts on priority
populations …
It is important that the health sector enters into a
respectful dialogue with other sectors to discuss
impacts of wider decisions on the health of priority
groups.

22. Implementation Plan: Priority Actions
Strategy Enabling Environment Mechanism/s for progressing action Responsibility
HIV
Hep C
STI
Eliminate stigma and
discrimination in community and
healthcare setting and empower
priority populations
Support advocacy and empowerment of
priority populations to encourage access
to testing, treatment and care
Civil Society
Partners
Hep B
Maintain effective partnerships
between governments and
organisations representing the
interests of people affected by or
at risk of living with hepatitis B at
local, state and territory and
national levels.
Identify and make effective use of
channels of communication across and
between sectors (e.g. housing, education,
legal) to promote better understanding of
the impact of stigma and discrimination
and discuss the impacts of wider
decisions on the health of people living
with BBV & STI.
All
Governments
with Partners
ATSI
Establish a dialogue between
health and other sectors to reduce
stigma and discrimination against
BBV and STI infected and affected
Aboriginal and Torres Strait
Islander individuals and
communities
Enter into respectful dialogues across
government, including through the justice
and custodial sectors, to discuss the
impacts of wider decisions on the health
of Aboriginal and Torres Strait Islander
peoples.
All
Governments
and partners

23. Nat. Strat. Implementation Plans
 The Commonwealth provides national leadership
on health, working through the Council of Australian
Governments (COAG) Health Council and its sub-committees
to facilitate national policy formulation
and coordination.
 State and territory Governments are primarily
responsible for direct delivery of health services
and service planning activities. State and territory
response to BBV and STI is guided by jurisdictional
policies and strategies that align with the National
Strategies.

24. But …
 Commonwealth refuses to engage in coordination or
discussion of legal issues (jurisdictional)
 Consistent disinterest & under-resourcing: MACBVSS
Legal Working Group:
 ‘Experts’ - ignored representative structures –input, feedback,
tracking progress
 No funding
 Reports appeared supressed

26. And from nowhere …
Mandatory testing of people who spit or bite
Bills drafted in South
Australia & Western
Australia
Adelaide Advertiser
15 October 2014

27. Some issues
 A senior police officer decides
 Reasonable grounds - suspects there has been a transfer of blood
or bodily fluid
 may apprehend and detain the suspect for as long as is
reasonably necessary to enable the test (WA)
 Failure to comply: $12 000 and imprisonment for 12 months (WA)
 Includes firefighters, paramedics, emergency services, midwives,
nurses, doctors, hospital emergency staff and surf lifesavers (SA)
…. lack of regulatory/legislative protections & guidance
& monitoring - 147 instances - officers were exposed to bodily fluids
while policing in 2013 (WA)

28. How do we advocate?
Police and Blood-Borne Viruses
Australasian
Society for HIV
Medicine
Australia New
Zealand Policing
Advisory Agency

29. How do we advocate?
‘Partner’ Agency What
President White House National HIV AIDS Strategy for the United States:
‘Since it is now clear that spitting and biting do not pose
significant risks for HIV transmission …’
Federal
Government
(department)
US Department of Justice Best Practices Guide to Reform HIV-Specific
Criminal Laws to Align with Scientifically-Supported
Factors
Senior
scientists
Centers for Disease Control
and Prevention
Statement - HIV not transmissible through spit
Peak
organisations
Center for HIV Law &
Policy, National
Organization of Black Law
Enforcement Executives,
Association of Prosecuting
Attorneys
Spit does not transmit: Fact sheet for Law
Enforcement Professionals on the Risk of HIV
Transmission in the Line of Duty
 Would the AG or Police Minister listen to the Health Minister?
 How do we monitor implementation – data on frequency, justification, experience?
(147 instances - officers were exposed to bodily fluids while policing in 2013 – WA)
 How do we better engage with police?

30. Report to The Sunday Times from WA Police Union
 A FATHER with several children was bitten on the leg by a man during
an arrest: “My children were astounded that, firstly, any person would
consider doing that and, secondly, that it could result in me being
exposed to a disease that could have serious consequences to my
health. I regularly think about how this will affect my life.”
 STABBED with a screwdriver and exposed to the attacker’s blood, a
policeman says later: “We had family members travel from the United
Kingdom to attend the wedding. As is customary my family members
expected at least a kiss on the cheek from me on their arrival from
overseas. I had to pull myself away from them, which was
embarrassing for me and I am sure was the same for them. This
situation made me very self-conscious and turned what should have
been a very happy time for me into an awkward and difficult time. I will
never get that time back again.”

32. Progress – last 5 years