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Saturday 10 October 2009


What you should know about HIV and the law

Posted in: Features, HIV
By Jay Bennie - 21st May 2009

As Auckland police investigate claims that a rogue HIV positive man has for over a year been seducing young gay men and knowingly infecting them with HIV, GayNZ.com begins a series of feature articles on issues arising from the allegations.


PART 1: HIV AND THE LAW


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Firstly, let's look at the The NZ Crimes Act (1961). It
defines a charge of "criminal nuisance," applicable if HIV has not been transmitted but the defendant did not take "reasonable precautions" - more of which later - to avoid transmission. It is punishable by up to one year in prison.

The Act also
defines "wounding with intent or reckless disregard" which is taken as applying to transmission of HIV if no "reasonable precautions" were taken by the HIV-positive person. It is punishable by up to seven years in jail.

If a court finds that HIV transmission was intentional there are more serious charges and consequences. Willfully causing a disease or sickness carries a sentence of up to 14 years imprisonment.


COURT CASES TO DATE

Historical New Zealand precedents start with the highly publicised 1994 case of knowingly HIV positive Kenyan musician Peter Mwai, who was sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported after serving four years in jail, Mwai died in Uganda three months later.

In late 1999 HIV positive gay Aucklander David Purvis, who knew he had the virus, was sentenced to four months jail after pleading guilty to committing a criminal nuisance by having unprotected sex with another man who did not contract HIV.

The case of Christopher Truscott hit the national headlines again and again from 1999 as the intellectually impaired ex-rent boy repeatedly escaped from supervised accommodation proscribed by the court after he repeatedly had unprotected sex. Truscott, who seems unable to comprehend the implications of his HIV infection, bolted from from his Christchurch community-based lock-up so often, generally heading to public toilets in Hagley park seeking more sexual encounters, that he is now a permanent resident of a secure mental health facility.

In 2004 HIV positive Zimbabwean Shingirayi Nyarirangwe was sentenced to three years jail after pleading guilty to four charges of criminal nuisance and three of assault, relating to unprotected sex with several women.

And in 2005 HIV positive man Justin Dalley was sentenced to 300 hours of community work, six months' supervision and to pay a woman $1000 in costs because he did not wear a condom during sex with her, despite knowing his HIV positive status. The woman did not contract HIV.

Soon after, Dalley was acquitted on a second, similar charge because on that occasion he did wear a condom, thus setting a legal precedent recognising that by wearing a condom, for vaginal sex at least, an HIV positive man is taking "reasonable precautions" against infection and need not disclose his HIV status.


Currently a New Zealander originally from the Democratic Republic of Congo is awaiting trial on charges that he had unprotected sex with a woman and infected her with the virus. It is possible he also infected other women.


"REASONABLE PRECAUTIONS"

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There are a few precedents in that group of cases, so where do HIV positive men stand legally? While pointing out that individual cases may have factors which affect how a court interprets the situations, the NZ AIDS Foundation provides newly diagnosed people with a leaflet setting out guidelines as to what generally constitute "reasonable precautions."


It suggests reasonable precautions against passing on HIV include "only engaging in sexual activities that involve a very low or no risk of transmission," such as "oral sex, masturbation and kissing and using condoms for anal sex." The Foundation points out that the second Dalley case related to vaginal sex only but its outcome is expected to influence any subsequent case regarding anal sex.

How reliable are condoms at stopping transmission? Despite the bizarre recent statement by Pope Benedict XVI that condoms increase the spread of HIV, UNAIDS, the United Nations agency tasked with global HIV prevention programmes, supports their use as a practical, scientifically proven, barrier to transmission. HIV cannot pass through an intact good quality condom and condom use means you are at a minimum ten times less likely to contract HIV. Given that HIV is believed to be sexually transmitted in just one in more than two hundred exposures to actual live virus, even basic primary school maths supports condom use.

It's worth noting that condoms can protect both the 'active' and the 'receptive' partner, though the receptive guy is at a hugely higher risk of catching HIV from the active partner than vice-versa.


DISCLOSURE

In its leaflet the AIDS Foundation also addresses the difficult issue of disclosure. That is, when an HIV positive person should or should not advise his sex partner that that he has the virus. While the Dalley case indicates that use of condoms is legally sufficient to protect against HIV transmission, the Foundation points out that non-disclosure can have "an impact on issues of trust and emotional expectations in a sexual relationship." The NZAF leans toward the view that there exists "a moral expectation for HIV positive people to disclose to their sexual partners." Recognising that fronting up can be difficult for the HIV positive person it suggests pre-disclosure counseling through an HIV support organisation.

But there is also a tricky issue for the presumably HIV-free partner, regarding disclosure. Absence of disclosure by a sex partner is about as reliable an indicator of HIV status as "Trust me mate, I haven't tested but I now I'm safe!" Yeah right. Most HIV infections are believed to be transmitted by people who don't yet know they have the virus to those who, for a variety of often complex reasons, are not fully committed to safe sex.

And for the truly perverse, what about situations where an HIV positive person discloses his status but by mutual consent no condom is used? The Foundation points out that although disclosure, which can be very hard to prove after the event, can avoid legal liability, consent can be disputed if alcohol, drugs or fear are involved.


THE NZAF'S GOLDEN RULE

The golden rule for staying out of legal - and medical - trouble, promoted for years by the NZAF is, regardless of circumstances, appearances, urgency or reassurances: "Always use and condom and lube for anal sex."

Always.


Next week, in PART 2 of this series, we look at who can do what with information gained through testing, counseling and supporting HIV positive people.


Jay Bennie - 21st May 2009

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