A- A A+

Public health solutions to managing HIV

Kate Galloway |  28 November 2016


Earlier this year, a Queensland man was found not guilty of intentionally infecting his former girlfriend with HIV. The case was sent back to the District Court to determine a sentence for the lesser charge of grievous bodily harm.

World AIDS Day promo imageAt the time of the decision, the not-guilty finding was both welcomed by advocates who see criminal prosecution as reflecting the stigma of the condition, and criticised by others who consider the criminal law an appropriate sanction for harm caused.

On the one hand, health authorities are keen to combat the spread of HIV. It is therefore regulated under public health provisions across the country.

In Queensland for example, HIV is a 'controlled notifiable condition'. As such, both HIV positive and HIV negative people have responsibilities. HIV positive people must not recklessly put someone at risk of contracting the notifiable condition, and HIV negative people must take reasonable precautions to avoid contracting the condition. Penalties apply, but the point is that management of the condition and its spread is framed as a public health strategy.

In contrast, the criminal law exists as a form of punishment for breaching established norms, and to deter criminal acts. On this argument, a person — such as the man found guilty of grievous bodily harm — should be held accountable for that harm.

This is troublesome though for offences concerning HIV. For example, the criminal law is known to do a poor job at policing sexual behaviour. Such laws require the state to peer into people's intimate relations — not as a question of health, but for the purpose of a potential prosecution and public hearing. For 'notifiable conditions' this may require police investigation of multiple partners, even those who are not complaining of an offence.

Of additional concern, criminal laws may deter people from being tested for HIV. If they are not tested, and therefore do not know that they have the condition, then they may avoid falling foul of the law. However this also increases the likelihood of transmission, as people cannot possibly take appropriate precautions if they do not know they are infected.

This effect, arising from a fear of prosecution, directly contradicts the public health objectives of disease management. In a further argument against criminal laws, the stigma of HIV makes HIV-infected people vulnerable. This community would make an easy target for law enforcement, potentially infringing their human rights.


"One of the challenges facing the criminal law in this field is staying abreast of the rapidly evolving science around HIV and its transmission and ensuring it takes account of only the best available evidence."


There are various types of criminal law around Australia that are relevant to HIV — although not all are based upon the science of its transmission. For example, some states have legislation requiring mandatory testing of a person accused of spitting at a police officer. The testing is to establish whether the accused has a blood born virus. Advocates point out that this perpetuates the myth that spitting might transmit HIV — where in fact the risk of transmission is practically zero in almost all circumstances. Indeed, no transmission by biting or spitting has ever been recorded in Australia.

As long as HIV remains a focus of criminal law, in particular in light of the ongoing stigma of HIV-positive people, it remains important to use this law judiciously. One of the challenges facing the criminal law in this field is staying abreast of the rapidly evolving science around HIV and its transmission and ensuring it takes account of only the best available evidence.

To this end, the Medical Journal of Australia recently published a consensus statement on HIV and the law, authored by a number of leading clinicians and scientists. The authors outline the current knowledge about HIV transmission and treatment, together with recommendations for management of the spread of the virus. For example, the latest evidence shows that the risk of transmission through sexual encounters between partners who have different levels of antibodies 'can be low, negligible or too low to quantify'. The statement points out further, that in most cases public health management is preferable to prosecution.

Victoria repealed its HIV-specific criminal laws in 2015. Advocates have welcomed this as a move towards using a public health framework to ensure the health of the HIV-positive person and the rest of the community. With World AIDS Day almost upon us, the tenor of this latest consensus statement adds to the argument for reform, providing a basis for all states and territories to consider effective, just, and evidence-based approaches to management of HIV.


Kate GallowayKate Galloway is a legal academic with an interest in social justice.

1 December is World AIDS Day.



Comments should be short, respectful and on topic. Email is requested for identification purposes only.

Word Count: 0 (please limit to 200)

Submitted comments

From the "Queensland for example" link: For the HIV (+) positive person: 1. An HIV positive person must not “recklessly” transmit HIV. This is a different requirement than under the Criminal Code where “intent” must be established. However, if criminal intent is established the case may be prosecuted under the Queensland Criminal Code; 2. Given that a person must not “recklessly” transmit HIV, it means that a person does not have to disclose their HIV status as long as they practice safe sex; and 3. Condoms and water-based lubricant during sex would be considered safe prevention strategies as their effectiveness is founded in evidenced based prevention. One would hope that sex partners in a trust relationship would disclose their HIV status to the other. Given that sex in a non-trust context is one person consuming another, should not the standards of food labelling apply instead? Are manufacturers allowed not to disclose pertinent risks, pertinent, that is, to the healthy consumer of the product who wishes to remain healthy by knowing of the risks beforehand? Or is sex after a pickup caveat emptor? Instead of being morally priggish and asking What Would Jesus Do, may we be practically prudent and ask What Would CHOICE Magazine Say?

Roy Chen Yee 29 November 2016

Roy, are you talking about human beings or battery hens?

Aurelio 01 December 2016

Similar articles

The man who sank the myth of controlled nuclear warfare

Binoy Kampmark | 18 October 2016

Des BallThe late Professor Desmond Ball of the Australian National University's Strategic and Defence Studies Centre came as close as any on being a public intellectual on nuclear strategy. While some of his counterparts in the US felt that using nuclear weapons was feasible and sound, Ball issued his pieces with mighty caveats. 'Controlling escalation', Ball ventured, 'requires both adversaries to exercise restraint, and current US policy is to offer a ... mixture of self-interest and coercion.'

Respect and relationships in forming identity

Andrew Hamilton | 19 October 2016

Colourful thumbprintPromos suggest you can choose your identity. Join a tour to Kurdistan and you can become an adventurer. Buy an Aussie flag, sing loudly about boundless plains, and you can become a dinky di Aussie. Identity, however, is more subtle. It is formed by relationships, to the human race, to body, to place of birth, to language, to the significant adults of childhood, to possessions, to education and work, to hobbies, religions and political parties and to all the people met through these relationships.

There's room at the table for the poor if we make it

Julie Edwards | 17 October 2016

Cartoon by Chris JohnstonOne of the most misused passages of Christian scripture tells us we shall always have the poor with us. It is often repeated by those who are not poor in order to dismiss any project that involves public expenditure or private generosity to people who are poor. When we do not focus on the good or bad conscience of the observer but on the lives of the people who are poor, we can see that the statement is not a justification for a modern society that allows people to live in poverty. It is an indictment.

Left shares blame for the rise of the rogues

Fatima Measham | 16 October 2016

Donald TrumpMuch has been made about how Republicans benefited from the 'birther' campaign and the Tea Party. It suited them to have proxies undermine the executive branch. In other words, the political right only has itself to blame for the nihilism which now engulfs it - and potentially, the nation. But the failures of the left also bear examination. While Clinton's current lead cannot be attributed entirely to her virtues, the polling gap between her and Trump should have been much wider, earlier.

Funding policies silence Indigenous DV victims

1 Comment
Dani Larkin | 12 October 2016

Bashed Aboriginal woman with man's hands over her mouthLabelling it a 'domestic violence epidemic', Mundine questioned whether Indigenous parliamentary ministers were adequately advocating for Indigenous peoples. His remarks were ironic given that, as Linda Burney points out, 'these things have happened on his watch'. Without government funding to support grassroots, community based early intervention programs, family violence will continue. In particular, how those programs are actually being funded should be reviewed.