C R IM IN A L IS A T IO N W hat is the legal duty? Crim es Act 1961 s156 Duty of persons in charge of dangerous things Every one who has in his charge or under his control anything whatever, whether anim ate or inanim ate, or who erects, m akes, operates, or m aintains anything whatever, which, in the absence of precaution or care, m ay endanger hum an life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is crim inally responsible for the consequences of om itting without legal excuse to discharge that duty. ⇒ All people in New Zealand have a duty to take care when they are in control of som ething that can endanger life, health or safety of other people. Infectious bodily fluids of HIV positive people are considered to be som ething HIV positive people are in control of. This m eans that legally they m ust take reasonable precautions to avoid transm itting HIV to other people.
W h e re H IV h a s b e e n tra n s m itte d C rim e s A c t 1 9 6 1 s 1 8 1 (2 ) W o u n d in g w ith in te n t - (o r re c k le s s d is re g a rd ) E ve ry o n e is lia b le to im p ris o n m e n t fo r a te rm n o t e x c e e d in g 7 ye a rs w h o , w ith in te n t to in ju re a n yo n e , o r w ith re c k le s s d is re g a rd fo r th e s a fe ty o f o th e rs , w o u n d s , m a im s , d is fig u re s , o r c a u s e s g rie v o u s b o d ily h a rm to a n y p e rs o n . ⇒ If H IV is tra n s m itte d a n d it c a n n o t b e s h o w n th a t th e re w a s s o m e c o n c e rn ta k e n b y th e p o s itive p e rs o n fo r th e s a fe ty o f th e ir p a rtn e r (fo r e x a m p le : b y w e a rin g a c o n d o m ) th e p o s itive p e rs o n w ill b e c rim in a lly lia b le a n d m a y b e s e n te n c e d to u p to 7 ye a rs in ja il.
NO CRIMINAL LIABILITY Condom + Disclosure OR NO disclosure
CRIMINAL LIABILITY NO condom + NO disclosure
O F
H IV
IN
N E W
W h e r e H IV h a s n o t b e e n tr a n s m itte d C r im e s A c t 1 9 6 1 s 1 4 5 C r im in a l n u is a n c e (1 ) E v e ry o n e c o m m its c r im in a l n u is a n c e w h o d o e s a n y u n la w f u l a c t o r o m its to d is c h a r g e a n y le g a l d u ty , s u c h a c t o r o m is s io n b e in g o n e w h ic h h e k n e w w o u ld e n d a n g e r th e liv e s , s a f e ty , o r h e a lth o f th e p u b lic , o r th e lif e , s a f e ty , o r h e a lth o f a n y in d iv id u a l (2 ) E v e ry o n e w h o c o m m its c r im in a l n u is a n c e is lia b le to im p r is o n m e n t f o r a te r m n o t e x c e e d in g o n e ye a r. ⇒ C r im in a l n u is a n c e m e a n s th a t w h e n h e a lth o r s a f e ty is p u t a t r is k p e o p le h a v e to c o m p ly w ith le g a l d u tie s .
Z E A L A N D W h a t c a s e s h a ve th e re b e e n in N e w Z e a la n d to e s ta b lis h th is is th e la w ? T h e re h a ve b e e n 6 m e n c h a rg e d a n d s u c c e s s fu lly p ro s e c u te d in N e w Z e a la n d fo r n o t d is c lo s in g th e ir H IV p o s itive s ta tu s (n o c o n d o m s w e re u s e d ). In 2 0 0 5 w e h a d th e firs t c h a rg e la id (w e b e lie ve a n yw h e re in th e w o rld ) in w h ic h th e re w a s n o d is c lo s u re b u t a c o n d o m w a s u s e d . T h is c h a rg e w a s n o t u p h e ld . It h a s b e e n e s ta b lis h e d b y th is 2 0 0 5 c a s e th a t p ro p e rly u s e d c o n d o m s a re s u ffic ie n t to d is c h a rg e yo u r le g a l re s p o n s ib ility a s a p e rs o n th a t is H IV p o s itive . T h is m e a n s th a t it is n o t le g a lly n e c e s s a ry fo r p e o p le w h o a re H IV p o s itive to d is c lo s e th e ir H IV s ta tu s to s e x u a l p a rtn e rs w h e re a c o n d o m is p ro p e rly u s e d .
• The law in NZ is clear that people that are HIV positive are not criminally liable when there is condom use and disclosure or condom use and no disclosure. • Condoms + water-based lubricant for anal and vaginal sex are the most effective way of preventing HIV being transmitted sexually. Encouraging condom use has always been the primary response of public health experts to prevent the transmission of HIV. • To support the public health campaign against transmission of HIV the law must provide an incentive for people to use condoms, it must not treat condom use as an irrelevant consideration. • People have greater access to casual sex since the advent of internet dating. In this casual sex environment it should always be assumed that there is a risk a partner is HIV positive and the response should be employ the universal precaution of using condoms + water-based lubricant.
• When there is no condom used and no disclosure a sexual partner that is HIV positive exposes himself or herself to the risk of criminal liability under NZ law. • In casual sex situations many people will not have sex with someone they know is HIV positive. For a person that is HIV positive there is an array of reasons why he or she would choose to not disclose their status. • Disclosure of a negative HIV status does not stop the virus being transmitted as we know that up to one-third of people that are HIV positive are not aware of their HIV status, and cannot disclose. In the first months of becoming infected with HIV people are more infectious than at later stages of the disease, this early stage is also the time when they are least likely to be aware of the fact that they have become infected. • Legally requiring disclosure would create a disincentive for people to be tested for HIV and place responsibility for safe sex entirely on the person living with HIV/ AIDS. • If the 2005 Wellington case had decided that the law turns entirely on disclosure and that using a condom did not matter it would have meant that there is no legal incentive to use condoms and that the law would have contradicted the fundamental public health message of consistent condom use to prevent HIV transmission. • Even for those that are aware of their HIV positive status we cannot assume that they will always feel able to disclose this to others. • By disclosing an HIV positive some people may be putting themselves at risk of violent assault, for example sex workers and people in violent relationships. • It is vital that condoms are used to prevent the transmission of HIV, whether disclosure occurs or not.
• Relying on the law to protect you from HIV is a risky strategy • Disclosure does not stop HIV transmission, condoms + lubricant do.