HIV Law, Repeal 19A

A video introduction to HIV & the Law

Repeal of Section 19A

Watch highlights from 'Beyond Blame: Challenging HIV Criminalisation' meeting that happened prior to AIDS 2014 in July, thanks to Edwin Bernard from the HIV Justice Network and Nick Feustel from Georgetown Media. The video provides an engaging overview of the meeting, including interviews with a number of speakers and extracts from the rapporteur session. It is 12 minutes in length.

Living Positive Victoria and the Victorian AIDS Council are calling for changes to Victoria's criminal laws. We believe the criminal law is an ineffective method of preventing HIV infections, and that HIV should be treated as a public health issue, not a legal one. In particular, we believe that section 19A of the Crimes Act 1958 (Vic) should be repealed. Section 19A establishes the criminal offence of ‘intentionally causing a very serious disease’ – with ‘very serious disease’ defined exclusively to mean HIV infection. This is the only HIV-specific criminal offence in force in any Australian jurisdiction.

Although only rarely prosecuted, the existence of this provision creates a number of problems for Victorian people living with HIV and for the Victorian HIV response.

This law:

  • treats the intentional infliction of HIV infection as inherently more serious or repugnant than other forms of violence, reinforcing the stigma around HIV;
  • reinforces negative stereotypes suggesting that people living with HIV are dangerous to the community; discourages HIV testing, by providing an incentive for individuals to not know their HIV status; 
  • has never been used in the circumstances for which it was originally enacted (the deliberate transmission of HIV by a blood-filled syringe);
  • ignores the significant medical advances which have been made in HIV treatment since its enactment; is redundant, as offences of general application exist that could be applied in a case of intentional HIV transmission; 
  • and fails to meet internationally-accepted standards for the application of the criminal law to HIV transmission.
  • Living Positive Victoria and VAC have developed a Policy Brief which outlines in detail the history and current context of section 19A and sets out the case for its repeal.
  • Policy Brief Repeal of Section 19A
  • Australia has recently adopted the ambitious goal of eliminating all new HIV transmissions by 2020. Living Positive Victoria and VAC strongly support this goal and argue that addressing the stigma attached to HIV and people living with HIV will be a critical part of our efforts to end the HIV epidemic in our state. Criminalisation of HIV transmission and exposure is a contributor to HIV stigma and the time has come for bold action to remove this HIV-specific offence from the criminal law.

    Below is a video of the recent forum VAC hosted in partnership with Living Positive Victoria about HIV and the Law on World AIDS Day 2014.

    HIV and ‘The Law’ Victoria and Tasmania

    National Guidelines for the Management of People with HIV who Place Others at Risk are used as a reference point for the state based public health legislation and criminal law for people living with HIV. A PLHIV who transmits the virus to another, or exposes another person to the risk of HIV transmission, may have broken the laws.

    Victoria

    Public Health Management

    The Public Health and Wellbeing Act 2008 does not specifically require an HIV-positive person to disclose their HIV status before having sex.

    PLHIV within Victoria who ‘intentionally’ place another person at risk of HIV infection may be managed through the public health system as administered by the Partner Notification Officers and overseen by the Department of Health, Chief Health Officer through a five stage process (referral can be made to the Police at any time).    

    Criminal Law

    Sex Work

    People living with HIV within Victoria cannot legally participate in Sex Work or be employed as a Sex Worker by the proprietor of a Brothel or Agency as governed by Sex Work Act 1994

    Tasmania

    The following is a brief outline of the relevant laws: 

    Public Health Management

    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.

    Please note that this is subject to change in 2013.

    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.

    Other States:

    There are significant variations between jurisdictional state and territory laws concerning disclosure of your positive HIV status to sexual partners throughout Australia.  For further information about the applicable and relevant laws contact the state based PLHIV organisation.

    Useful Resources