criminalisation of plhiv: the victorian experience

+

Criminalisation of PLHIVThe Victorian Experience

Paul KiddAFAO Positive Services Forum19 March 2012

plwhavictoria.org.au

+Background

A range of criminal laws have been used against PLHIV in Australian jurisdictions for intentional, knowing or reckless HIV transmission or exposure.

In Victoria, since 1991 there have been at least 16 prosecutions, with half of these leading to guilty verdicts.

Six of these 16 have been for HIV exposure – i.e. where no HIV transmission occurred or the route of transmission could not be proved.

Victoria has the highest number of known HIV prosecutions (16) and the highest number of convictions (8), of any state.


+Australian HIV Transmission/Exposure Prosecutions

Source: Sally Cameron

1991

1993

1995

1996

1997

1998

1999

2001

2002

2004

2005

2006

2007

2008

2009

2010

2011

0

1

2

3

4

5

6


+Prosecutions since 2002

ACT NSW NT Qld SA Tas Vic WA0

1

2

3

4

5

6

7

8

Source: Sally Cameron


+How the law works in Victoria

Two parallel systems – public health and criminal

Crimes Act 1958 s. 16 (recklessly cause serious injury) – 20 years s. 19A (intentionally cause a very serious disease) – 25

years s. 22 (conduct endangering life) – 10 years s. 23 (conduct endangering person) – 5 years

Health Act 1958 – repealed s. 120 (knowingly transmit an infectious disease) – $20,000

Public Health and Wellbeing Act 2008


+Public Health and Wellbeing Act 2008

Reform of the old Health Act removed the offence of ‘knowingly or recklessly infect another person with an infectious disease’

Replaced with ‘statement of principles’ (s. 11):

a person who has, or suspects that they may have, an infectious disease should ascertain whether he or she has an infectious disease and what

precautions he or she should take to prevent any other person from contracting the infectious disease; and

take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease.

a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease.


+Public Health and Wellbeing Act 2008

Chief Health Officer (CHO) has wide-ranging powers to control infectious and communicable diseases: Power to order examination, testing, arrest, detention and

isolation (ss. 113–116) Power to make a Public Health Order, requiring an

individual to undergo counselling or psychiatric assessment, refrain from certain activities, refrain from visiting certain places, etc. (s. 117)

Must take the ‘least restrictive measure’ (s. 112)

For people with HIV, the CHO exercises these powers in accordance with the Guidelines for the Management of People with HIV who Place Others at Risk


+The Guidelines

Five-stage process, moving from counselling and support to more restrictive measures including detention and isolation

HIV Case Advisory Panel appointed to advise the CHO HCAP membership: two PLHIV, two doctors, a psychiatrist, a

health worker, a lawyer and an epidemiologist

Partner Notification Officers (PNOs) within the Health Protection Branch do the front-line work under direction from the CHO

Guidelines are publicly available, clear and concise

Generally works well


+Comparing the criminal and public health processes

Public Health and Wellbeing Act

Crimes Act

Focus on behaviour change Focus on punishment

Deals with future acts Deals with past acts

Logical, published process Lack of clarity, subjective

Highly successful Limited deterrent effect

Protects public health May harm public health

Confidential Can be very public

Feared by PLHIV community More feared by PLHIV community


+Issues

More people are reporting to the police

Why? – The ‘Michael Neal effect’ Increased public awareness of criminal prosecutions Lack of awareness of PH system? Culture of retribution/blame?

Different outcomes in different processes – ‘lucky dip’

Conflict between the aims of criminal and PH processes But both aim to protect the public interest

Exposure cases especially troubling


+Taking action

‘David’ (not his real name) Charged early 2011 with

attempting to intentionally infect (max. 20 yrs) conduct endangering life (max. 10 yrs)

No transmission occurred (exposure only) Charges ultimately dropped

Initial engagement with CHO re ‘David’ – gain understanding of how processes work between police and DH, followed by successful FOI request

Engagement with Office of Public Prosecutions (OPP)


+Proposal for Victorian OPP guidelines

Met with OPP in October 2011 and March 2012

Inspired by UK experience in development of guidelines for the Crown Prosecution Service (CPS)

OPP policy officer is now developing guidelines for HIV prosecutions Subject to sign-off by the DPP Will not be a public document Informed and guided by our submissions, CPS guidelines Expected outcome within few months


+Our submission

Public interest test applied by Crown Prosecutors should take account of public health impact of any prosecution Prosecutions for HIV exposure unlikely to pass public

interest test

Prosecutors should be aware of public health process and consider whether case can be managed within that arena Possible formal case diversion pathway

Prosecutors should be aware of current HIV science Impact of viral load on transmission risk Modern estimates of long-term survival rates


+The future

Continue working with the OPP to conclude the current process

Ongoing relationship with OPP to support education Educational program for Crown Prosecutors is in

development Education of community and stakeholders to increase

clarity

Engage with Victoria Police

Possible legislative review of the Crimes Act

Continue monitoring and support


+

Sally CameronMichael Williams

Acknowledgments

Thanks

Paul [email protected]

Contact


+ Please sign the Oslo Declaration

www.hivjustice.net/oslo/

criminalisation of plhiv: the victorian experience

Health & Medicine

public health order

public health impact

public document

submission public

parallel systems public

office of public prosecutions

years health act

old health act