Criminal law and public health law responses to cases of knowing and reckless HIV transmission – complementary or competing policy approaches? Mike Kennedy – Victorian AIDS Council/Gay Men’s Health Centre Grant Davies – Centre for Health and Society, Melbourne University

Two public policy approaches: Criminal law – designed to punish “offender”; provide justice for “victim”; deter others Public health law – modifying “risky” behaviours through counselling and support; placing the person under the least restriction possible while protecting public health

The law (1) Legal offences relating to HIV are covered under State/Territory legislation No nationally consistent legislation Transmission is regulated by two areas of law – criminal law and public health law Dual systems in most States/Territories since the early 1990s (except Western Australia, the ACT and the Northern Territory)

The law (2) Lack of consistency in terms of what type of legislation is used in a particular case (i.e. criminal, or public health, or criminal/public health law provisions) Lack of consistency in types of offences Lack of consistency in penalties

Type of legislation used JurisdictionCriminal LawPublic Health Law NSWCrimes Act 1900 s33,35Public Health Act 1991 s13 VictoriaCrimes Act 1958 s16, 17, 19a, 22 Health Act 1958 s120 QueenslandCriminal Code 1899 s317, 320Public Health Act 2005 s143 WACriminal Code s294,297 SACriminal Law Consolidation Act 1935 s29 Public and Environmental Health Act 1987 s37 TasmaniaCriminal Code Act 1924 s170, 172 HIV/AIDS Preventative Measures Act 1993 s20 ACTCrimes Act 1990 s19, 25 NTCriminal Code Act s177,181

Types of offences (criminal) Serious diseases and grievous bodily diseases Victoria, NSW, Queensland and WA all make it an offence to either transmit, or infect someone with, a serious or grievous bodily disease Victoria has enacted specific criminal laws dealing with the transmission of serious diseases (HIV) NSW, Queensland and Western Australia have incorporated transmission into grievous bodily harm offences

Grievous Bodily Harm or Serious Harm Grievous Bodily HarmSerious Harm NSW Queensland Tasmania ACT Victoria NT Commonwealth

Crimes Act 1900 (NSW) 33Wounding or causing grievous bodily harm with intent (1)Intent to cause grievous bodily harm. A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years

Crimes Act 1990 (NSW) 35 Reckless grievous bodily harm or wounding (1)Reckless grievous bodily harm in company. A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence. Maximum penalty: imprisonment for 14 years (2)Reckless grievous bodily harm. A person who recklessly causes grievous bodily harm to any person is guilty of an offence Maximum penalty: imprisonment for 10 years

Criminal Code 1899 (Queensland) 317(b) Acts intended to cause grievous bodily harm and other malicious acts Any person who, with intent to do some grievous bodily harm or transmit a serious disease to any person, in any way unlawfully wounds, does grievous bodily harm, or transmits a serious disease to, any person is guilty of a crime and is liable to imprisonment for life. R-v- Reid (2006) One count of intention to transmit a serious disease: unprotected intercourse with another man and intentionally failing to disclose – sentence 10 ½ years

Criminal Code 1899 (Queensland) 320Grievous bodily harm Any person who unlawfully does grievous bodily harm to another is guilty of a crime and is liable to imprisonment for 14 years. s.1 defines GBH in part as “any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health”

Endangerment Victoria and South Australia extend culpability beyond actual harm and have legislated against a person doing acts that do or may place another person’s life or safety in danger e.g. Crimes Act 1958 (Vic) 22 conduct endangering life A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence Penalty: Level 5 imprisonment (10 years maximum)

Attempts In all jurisdictions, attempting to commit an offence also constitutes an offence, although with a lower penalty

Disclosure NSW law requires that any person who is suffering from a sexually transmissible condition must disclose their status to any potential sexual partner Tasmania is the only other State in Australia that applies a similar disclosure requirement. However, it differs from NSW in that it only applies to a person who is infected with HIV and also requires disclosure where a person living with HIV is sharing needles

Public Health Offences Infection/Transmission/Exposure Victoria and Queensland both make it an offence to transmit or infect another person with an infectious disease/controlled notifiable condition Queensland has an additional offence relating to when someone exposes someone else to the risk of contracting a controlled notifiable condition

Reasonable measures to prevent transmission South Australia requires that a person “take all reasonable measures to prevent transmission”. Unlike in Victoria and Queensland, the emphasis is on the actions of the infected person to prevent transmission rather than whether infection, or the risk of infection, took place Tasmania has a similar requirement to South Australia; however the law also requires that a person discloses their status prior to sex or sharing a needle

Penalties Under criminal law, these vary significantly – from life imprisonment for transmitting a serious disease in Queensland to two years for causing GBH in the ACT A person can be either imprisoned or fined if they contravene the relevant public health legislation in Queensland, Tasmania and South Australia. In NSW and Victoria the maximum penalty is a fine

The context A rise in the number of criminal prosecutions in Australia Prior to 2004, only a handful of criminal cases relating to HIV transmission in Australia (mostly in Victoria) Since then, at least one criminal prosecution in most States (except ACT, NT or Tasmania) Key cases –Michael Neal (Vic)- Stuart McDonald (SA) –Andre Paranzee (SA)- James Richards (Qld) –Mark Reid (Qld)- Ronald Houghton (WA) –Stanislaus Kanengele –Yodjo (NSW)

A move towards national consistency? In June 2007, the Australian Health Ministers Conference (AHMC) adopted a recommendation to implement a nationally consistent framework for managing people with HIV who risk infecting others Efforts to implement a national Model Criminal Code in the 1990s did not succeed and have now been de- prioritised by Justice/A-Gs Departments

Australian Health Ministers Council Meeting (24 July 2007) 16 recommendations adopted Support for current systems “Intent to cause serious harm” – criminal; “reckless” or “negligent” – public health Develop agreed police-Health protocols No evidence that mandatory disclosure is preventive & may do harm to prevention

Stop press National Guidelines endorsed by Health Ministers – April 2008 Uploaded on all State/Territory health websites, notification to Medical Boards, professional organisations – July State/Territory based training – August-September Health-law enforcement protocols – December NB Check against published Guidelines July 2008

Referral to police: Protocols in place CHO or equivalent – always with legal advice –Immediately where there are clear grounds for a charge involving intentionally causing serious bodily harm; or –After further examination and/or intervention where there is apparent unwillingness to alter behaviour that recklessly or negligently endangers or causes serious harm NB Check against published Guidelines July 2008

Other elements HIV Advisory Panel in each State/Territory Maintain or escalate management, or discharge Administrative and/or judicial review of decisions NB Check against published Guidelines July 2008

Management Framework Level 1: counselling, education and support Level 2: counselling, education and support under advice from HIV Advisory Panel to CHO or equivalent Level 3: Management under behavioural order Level 4: Detention or isolation Level 5: Referral to police NB Check against published Guidelines July 2008

Community based AIDS organisations’ challenge: Protecting the right of people living with HIV/AIDS to live full sexual lives while not condoning or excusing criminal behaviour

March 2007 AFAO Policy Position Criminal Prosecution of HIV Transmission Public health interventions preferable to criminal sanctions wherever this is possible and appropriate Prevention of HIV transmission the primary HIV public policy goal All people must take responsibility for protecting themselves and their sexual partners All people, including people living with HIV, have a right to enjoy a full and satisfying sex life

Criminal prosecution is not an effective public health intervention People with HIV should not be expected to disclose their HIV status to potential sexual partners if they have safe sex (use condoms and lube during penetrative sex or do not engage in penetrative sex) AFAO does not condone the behaviour of HIV positive people who behave in an unethical or irresponsible way in relation to HIV transmission AFAO supports the rights of victims of crime, including the right to access appropriate counselling and support services

Current public policy challenges for the Australian HIV partnership Integrated public policy approach linking criminal law and public health law Early triage of cases between the two systems Existing hierarchies and historical approaches will need to be confronted Community organisation role to ensure open dialogue and transparent case management

THANKS David Scamell (ACON) and Sally Cameron Colin Batrouney and Jason Asselin (VAC/GMHC) VAC/GMHC & PLWHA Victoria Political Organising Committee