The International AIDS Conference will be held in Melbourne in July. The conference, one of the largest in the world, attracts tens of thousands of activists, politicians, scientists, doctors and a diverse group of community members affected by HIV.

With the world’s eyes on Melbourne during the conference, it’s timely that we revisit our criminal laws with regards to HIV transmission.

Did you know that s 19A of the Victorian Crimes Act is the only law in any Australian jurisdiction that specifically criminalises the transmission of HIV?  The maximum penalty under the section is 25 years’ imprisonment – equivalent to armed robbery or aggravated crimes of violence.

Section 19A was introduced in 1993 to placate community fears of robberies with HIV-infected blood-filled syringes, but no HIV-positive person has ever been convicted of such a crime. Instead, the law has only ever been used for allegations of sexual transmission.

So is s 19A a good law? It’s only produced one conviction in 20 years (and this was for attempt); it was intended to be used to punish robbers armed with HIV laden syringes but has only been used to lay charges against people who have allegedly transmitted HIV through sex.

This is not to say that intentional transmission of a serious disease like HIV should not be a crime – there’s no doubt it should. But other sections of the Crimes Act are capable of being used should such a scenario occur. Not only that, we have public health processes that can be triggered when HIV transmission occurs, and which are focused on achieving positive behaviour change rather than punishing past wrongs.

In theory, s 19A was intended to protect the public, but what happens in practice is it acts as a disincentive to knowing your HIV status while reinforcing perceptions that people living with HIV are dangerous or malicious. This does no one any good.

Laws don’t exist in a vacuum.  You probably didn’t learn about s 19A at law school, and you definitely didn’t learn about the incredible social baggage a discussion about HIV and transmission brings.

Here are four things you can do today to know more about the fascinating junction of law, human rights and HIV:

• Register for Beyond Blame: Challenging HIV Criminalisation, an International AIDS Conference affiliated event about the criminalisation of HIV, not just in Victoria but around the world. The event is free to attend but you must register. Keynote speaker: Hon Michael Kirby. Registrations here: http://beyondblame.eventbrite.com.au
• Contact organisations like Living Positive Victoria or the Victorian AIDS Council, they can organise speakers or information sessions for you or your organisation to understand HIV and the human rights issues surrounding it. www.vicaids.asn.au and www.livingpositivevictoria.org.au
• Take part in the hundreds of events during the International AIDS Conference, for more details: www.aids2014.org
• Consider volunteering or donating to the HIV/AIDS Legal Centre, a community legal centre assisting HIV positive Victorians. For details: http://www.vac.org.au/plc-legal-assistance

What do you think? Is it possible to have a constructive discussion about HIV and decriminalisation of HIV without the fear and hysteria that usually comes with discussions about HIV?

About the authors: David Mejia-Canales is a lawyer and Vice President of the Victorian AIDS Council. Paul Kidd is an HIV activist, current law student at La Trobe University and the Chair of the HIV Legal Working Group at Living Positive Victoria.

Naturally, a lot of people are disappointed that what seemed like an achievable path to same-sex marriage has now been shut off. But as I blogged earlier today, the notion of pursuing separate marriage laws for each State or Territory seems woefully misguided, especially as what that would achieve might well be the enactment of some sort of same-sex marriage framework, but it certainly isn’t the ‘marriage equality’ it’s been sold to us as.

Instead of lamenting the Court’s entirely sensible and reasoned (and unanimous) decision to invalidate the ACT law, we should thank George Brandis and the Commonwealth government for their efforts in illuminating the pathway to genuine marriage equality – an amendment to the Marriage Act 1961 (Cth) that reforms the institution of marriage to be genuinely inclusive of all people – not just heterosexual and homosexual couples, but bi, trans* and intersex people too.

Brandis could have just let the ACT law pass quietly and, barring some other party having standing to challenge it, the States and Territories could have each passed their own little same-sex marriage laws, people would have gotten frocked up in rainbow bow ties and mums would cry – and the hets-only federal law would have continued as the gold standard with no further political agitation for change. Real marriage under the Marriage Act, marriage-lite on a state-by-state basis. Instead, the momentum for change will just grow, and now there is only one way forward: the federal law must be amended.

Thanks, George. You just painted a big rainbow target on your own forehead.

Some more observations on the judgment over the fold.

A few random early observations on the High Court judgment:

1. Same-sex marriage is marriage

One implication of the decision is that the Court found that the definition of ‘marriage’ in section 51(xxi) of the Constitution includes same-sex marriage, not just the kinds of marriages that were known in 1901. An important implication of this is that it settles the question of whether the Commonwealth has the power to pass a same-sex marriage law. Remember that unlike the States, the Commonwealth’s powers are limited to those enumerated in the Constitution; some scholars have argued that, depending on how the High Court reads the word ‘marriage’ in s 51(xxi), the Commonwealth might not even have the power to extend the definition of marriage. It does:

[38] When used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex.

2. Marriage can evolve in whatever way the Parliament decides

The Court found that marriage is an evolving social institution which has changed over time, both before and the Constitution and the Marriage Act were written:

[16] The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.

3. Polygamous marriage is constitutionally possible

The Court outlined a definition of the word ‘marriage’, as it is used in s 51(xxi) of the Constitution, that notably avoided the restriction of the word to a union between ‘two persons’:

[33] … Rather, “marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

Update, 3:20 pm: Crispin Hull, writing in the Fairfax press, takes a similar view:

In a way the result is a good one for marriage equality. Having same-sex marriages under state and territory law and other marriages under federal was never going to be satisfactory. Thursday’s decision paves the way eventually for a national law.

Macklemore and Lewis’ chart success comes at a time when both the Australian Prime Minister and the Leader of the Opposition are steadfastly opposed to marriage equality, as are the vast majority of our politicians. Marriage equality bills in both the Senate and House of Representatives were comprehensively defeated last September. Attempts to get same-sex marriage legalised on a state-by-state basis (which I have some issues with) seem to have foundered.

Australia seems no closer to achieving marriage equality today than eight years ago, when Labor and the Coalition combined to pass the Marriage Amendment Act 2004, which first defined marriage with those “one man and one woman” words we’ve heard so many times since.

But public support for gay marriage is at an all-time high. Every time a survey is conducted, the percentage of people in favour of marriage equality creeps ever higher. Across political lines, and across almost every demographic, a clear majority of people is in favour of removing this arbitrary barrier to equal treatment before the law. So why are our politicians so out of touch?

Throughout the history of civil rights, courageous politicians have stood up for what they knew was right, even when doing the right thing was not doing the popular thing. From the abolition of slavery in the US to the abolition of the  White Australia policy in Australia, courageous politicians have stood up for what is right and just, because that is what they are there to do.

Twenty years ago, in 1993, I was one of a small crowd of queers who sat, outside the NSW parliament, into the night to support a conservative politician, Ted Pickering, who that night provided the deciding vote needed to pass anti-gay vilification laws in that state. A small step on the road to securing our rights, and one that could not have been taken without one man stepping up to do what he knew was right, even though his party and the majority of his constituents thought otherwise?

Where are the Ted Pickerings of today? What became of the politician with a conscience, who saw past his/her next reelection bid and had the courage to do what was right, instead of what was popular or, worse, what the church, or industry, or x powerful lobby group, happy?

We press play
Don’t press pause
Progress, march on!
With a veil over our eyes
We turn our back on the cause
‘Till the day
That my uncles can be united by law
Kids are walkin’ around the hallway
Plagued by pain in their heart
A world so hateful
Some would rather die
Than be who they are
And a certificate on paper
Isn’t gonna solve it all
But it’s a damn good place to start

It’s young people, of course, who mostly listen to new music, and they’re the demographic most clearly in support of equal marriage rights. They have lived their whole lives in a world where acceptance of different sexualities and genders is more-or-less normal. They have grown up with the internet, which opens minds, and social media, which, at its best, opens hearts.

And they are the politicians of the future. I hope they still have this track on their music playlists when it comes time to take the oath of office.

In a disappointing decision, the Supreme Court of Canada has wound back the rights of people with HIV significantly, finding that sex without disclosure is a criminal act except where the accused both has low viral load and condoms are used.

The judgments in two cases – R v. Mabior and R v. DC (the links go to the full judgment in each case, courtesy of the HIV Justice Network) – were handed down in Ottawa overnight, and have been widely condemned by HIV activists in Canada and around the world.

Many news reports have failed to grasp the significance of the ruling, focusing on the fact that the Court found that there are cases where disclosure is not required, rather than on the narrowness of the circumstances in which that is the case.

Mr Mabior was charged with nine counts of aggravated sexual assault relating to his failure to disclose his HIV status to nine women before he had sex with them. None of the women contracted HIV. At trial, Mabior was convicted on six of the nine charges, and acquitted on the remaining three. The Court of Appeal reduced the number of convictions to two, and the Crown appealed that decision to the Supreme Court, which has now restored three of the four convictions, meaning Mr Mabior will be sentenced for five counts.

The timeline of the case shows the Canadian courts trying to make sense of the principle that there should be disclosure where there is a significant risk of transmission:

• The trial judge found that disclosure was required except where condoms were used;
• The Court of Appeal found that either condoms or undetectable viral load were sufficient;
• The Supreme Court found that both condoms and low viral load are required.

This is a significant backward step for people with HIV in Canada, who the Court seems to think of as criminals-in-waiting. The justices seem to have been incapable of grasping the idea of a reasonable level of risk. As Edwin Bernard points out, “the risk of HIV transmission with a high viral load and no condoms via insertive vaginal sex is estimated by the CDC to be just 5 per 10,000 exposures (i.e. 1-in-2000).” That risk is reduced by either condom use (80% reduction of risk according to the widely accepted Cochrane condom study) or undetectable viral load (96% according to the HPTN 052 study). So the Court believes that a 1-in-10,000 risk of transmission (vaginal sex with a condom) or a 1-in-50,000 risk (vaginal sex with undetectable viral load) represent a “realistic possibility of HIV transmission” and the bar has now been raised to a 1-in-250,000 risk (vaginal sex with undetectable viral load and a condom).

As well as potentially criminalising many thousands of HIV-positive Canadians for simply keeping their HIV status private while engaging in consensual, low-risk sex with no transmission of HIV, this case will discourage many people from testing for HIV: why test for HIV when the law treats you as a potential criminal if you test positive? That will lead to increased HIV transmissions, as we know the majority of new infections come from people who do not know their HIV status and are consequently not on treatment (high viral load) and less likely to use condoms.

This response from Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, neatly summarises the devastating impact of this decision:

We are dismayed and shocked by the Supreme Court’s decision. It is a step backward for public health and for human rights. The Court purports to maintain the current standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But given today’s judgment, this is an illusory limit to the criminal law. The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000.

Such an approach gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV. In practice, the Court’s ruling means that people risk being criminally prosecuted even in cases where they took precautions such as using condoms – which are 100% effective when used properly. This decision will not only lead to continued injustice but undermines public health efforts. It creates another disincentive to getting an HIV test and creates a further chill on what people can disclose to health professionals and support workers.

People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads.

Criminal prosecutions for HIV exposure and transmission have been rising worldwide, including here in Australia, and it is an ongoing challenge for HIV advocates to bring the law in line with reality, balancing the need to protect individuals with the human rights of people with HIV. The issues are complex but unfortunately, courts around the world have shown themselves to be needlessly conservative and often wilfully ignore scientific evidence, placing virtually all of the onus for HIV prevention on people with HIV and often, as is the case in Canada, criminalising behaviour which has no risk of HIV transmission whatsoever, in a real-world sense.

(Note: The numbers in the paragraph starting “This is a significant backward step…” are rough calculations made by me based on the results of several different studies and are meant to be illustrative of the levels of risk the Court has been dealing with, rather than scientifically valid statements of risk.)

The revised Act was passed by the previous Labor government, but has been waiting for gazettal for the last two years. NSW is one of two states in Australia (the other is Tasmania) that legally mandate HIV disclosure before sex, and the changes to the Act provide a new defence to prosecution for non-disclosure if the HIV-positive person can show they took ‘reasonable precautions’ to prevent transmission.

The relevant section of the new Act is as follows:

79 Duties of persons in relation to sexually transmitted infections (cf 1991 Act, s 13)

(1) A person who knows that he or she suffers from a sexually transmitted infection is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:

(a) has been informed of the risk of contracting a sexually transmitted infection from the person with whom intercourse is proposed, and

(b) has voluntarily agreed to accept the risk.

Maximum penalty: 50 penalty units [$5500].

[...]

(3) It is a defence to any proceedings for an offence under this section if the court is satisfied that the defendant took reasonable precautions to prevent the transmission of the sexually transmitted infection.

The new s. 79 largely mirrors the old s. 13, with the added subsection 3 adding the defence of reasonable precautions.

This is a step forward for people with HIV in NSW, albeit a tiny one, but it’s unfortunate that the NSW parliament didn’t take the opportunity to remove the disclosure requirement altogether, or at least change the section to require disclosure or reasonable precautions.

Instead, including it as a defence opens the prospect of people being prosecuted for non-disclosure even though they practiced safe sex, with the defendant bearing the onus of proof to use the new defence. We don’t know yet what the courts will decide constitutes taking ‘reasonable precautions’, so there’s still a level of uncertainty as to what positive people have to do to comply with the law.

The legal requirement for disclosure has been on the books in NSW for two decades and it’s one of those laws that are honoured more in the breach than the observance. There must be countless thousands of cases of sex without disclosure happening in NSW every year, and yet there have only ever been two prosecutions. Sally Cameron explains, in a Facebook discussion:

NSW Public Health Act was used only twice. In the first case (2005), the case was dismissed due to lack of evidence. In the second (2009), the accused was found guilty but discharged without conviction. The single case that resulted in a conviction involved a man who had used a condom with his female partner, then disclosed his HIV pos status when he realised the condom had slipped & told her about PEP. Even the judge agreed that while technically an offence had been committed, a penalty was not warranted.

The purpose of the Public Health Act is to protect public health, and its provisions should be based on sound scientific evidence. HIV transmission is prevented by avoiding risky behaviours, not by forcing people to disclose their HIV status under penalty of law. Forced disclosure shifts the burden of prevention to the person with HIV, it violates the right to privacy and it stigmatises positive people. It also discourages people who might be positive from testing, as the law only applies to people who know they are HIV-positive.

It’s important to note that the changes are to the Public Health Act, and not the criminal law. People with HIV can still face charges of reckless behaviour causing grievous bodily harm in NSW if they transmit HIV.

ACON, Positive Life NSW and the HIV/AIDS Legal Centre have all welcomed the new legal defence.