On Tuesday, the Victorian government moved to repeal section 19A of the Crimes Act, which sends anyone that deliberately infects someone with HIV to prison for up to 25 years.
With HIV being linked in our collective memories (inherited or experienced) to the death and loss of the Aids crisis, it is understandable why some may pause when they hear that a law meant to protect people from becoming infected with HIV is being repealed.
After all, for many people, HIV still conjures images of the Grim Reaper ads and a decimated generation of Australian gay men. That time, sad as it was, is now history.
Laws like 19A were enacted in a time of fear and sadness. That fear of HIV-positive people with weaponised blood and a death wish to infect innocent Australians was never justified. However, in the face of such Aids/HIV hysteria, HIV-positive people fell victim to the dull political trope of “something must be done.”
The moral panic that lead to 19A was caused by a number of incidents in which people held up businesses using syringes allegedly loaded with HIV-positive blood. 19A and laws like it have never been used to charge someone for a crime in this manner. Instead, they have only been used in cases of sexual transmission of HIV, or exposure to it (ie no infection occurred, but the accused still put a claimant at risk of contracting the virus).
In the last 20 years, 100% of prosecutions of crimes relating to HIV transmissions or exposure have been of men. Within the Australian context, given that at least 75% of people living with HIV are gay men, this may not come as a surprise.
However, some 50% of prosecutions are of heterosexual men and about one third of the total are of African migrant men charged with infecting Australian women. African migrant men make up nowhere near a third of the HIV-positive community, and this statistic speaks more to Australia’s racism towards men of African descent than the actual threat of migrant men infecting “our women”.
In effect, the only thing that was done with laws like this was to further stigmatise HIV-positive people. Today we know that HIV-related stigma is the primary driver of new HIV infections, because it acts as a barrier to people getting tested, receiving treatment and feeling confident in disclosing their status to family, friends, and – crucially – sexual partners.
But the repeal of 19A isn’t the end of the story. It is just one step in a long, unfinished process. At this moment, each state and territory still has laws in place that can be used to criminally prosecute anyone accused of transmitting HIV as an act of grievous bodily harm.
A simple accusation from an angry ex-lover is all that is required for police intervention, at which point the accused can experience heavy-handed police tactics, as well as intense media scrutiny, resulting in the loss of employment, housing and social support.
Regardless of whether these claims have any basis, the life of an HIV-positive person can be upended and ruined, compounding whatever stigma and discrimination they may have faced.
These laws take little to no heed of the current science around HIV, which has proven that the likelihood of transmission while on treatment is safer than using condoms (some laws don’t even carry provisions for condoms being used as a reasonable defence).
To imagine just how unfair these laws are when applied to HIV, picture a similar scenario in which a heterosexual man could call the police and have his female partner arrested for “tricking” him into getting her pregnant. It would be a veritable landmine of “he said, she said” required to prove anything, such is the hearsay and speculative nature of the accusation. When applied to HIV, these laws provide the same minefield.
This is not to say anyone found to be wilfully transmitting HIV may not have acted with criminal intent. Some people may genuinely think, “I hate this person, I am going to give them HIV”. That would, according to the laws we have in place, constitute an act of grievous bodily harm. It does happen – albeit far less frequently than other acts of violence relating to sex and gender.
It is certainly not how the majority of Australians contract HIV every year: from individuals who have recently become infected with HIV and are as yet unaware of their status. This is why it’s vital we encourage sexually active people to test, and test often.
HIV transmission occurs due to myriad issues arising from inability to remain monogamous, shifting sexual desire, authentically bisexual men being unable to live openly, and cultural barriers to sexual education/freedom. It’s a complex, nuanced issued in which there are often (but not always) a number of factors at play in determining where and how to attribute blame.
Given the wealth of scientific information we now have on prevention, treatment, and transmission, HIV needs to remain entirely a public health issue. HIV is most certainly not a criminal justice issue and any time a person is accused of transmitting HIV, it should be handled by the public health system.
Only when it is proven that transmission between the two parties has actually occurred, and the intent on behalf of the accused was to wilfully transmit HIV, should law enforcement become involved.
Like the Grim Reaper ad (doubtlessly effective as it was) which still prevails as a dominant image of HIV in Australia, in 2015 these “Grim Reaper” laws are out-dated when applied to HIV, and only serve to discriminate against HIV-positive people.
In their current application, all these laws do is intensify the stigma around HIV resulting in people who live with HIV being worse off than they already are. For someone nervous about testing positive for HIV, or scared to disclose their status to a potential sex partner, laws like these can only be counter-productive. Why on earth would you admit to being HIV-positive when the end result is still so grim?
