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Sunday 11 October 2015


HIV and the law: When sex is a crime

Posted in: HIV, Features
By Mark Fisher, Body Positive - 12th March 2015

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Mark Fisher of Body Positive
An Auckland man is currently being prosecuted under the Crimes Act of 1961 for grevious bodily harm for having consensual sex with another person that resulted in the transmission of HIV. While this case is before the court we can't publicly discuss its particulars but the nature of the charges raises some more general but important issues.

Any new diagnosis of HIV infection is unfortunate especially given the prevention tools available to people such as condoms and treatment which stop the transmission of HIV. Through the New Zealand AIDS Foundation (NZAF) New Zealand has an active campaign to promote condom usage. Condoms provide the highest level of protections and they are freely available.

If you have engaged in risky behaviour it is important test regularly for HIV and other STI’s (sexually transmitted infections) and to seek support and counselling. If you contract HIV it is important to be connected to medical care as soon as possible as this will help prevent further transmissions of HIV.

There are lots of ways to have risk free sex even when one of the participants is HIV positive but there needs to be honesty. Unfortunately the stigma and fear surrounding HIV in many cases leads to rejection and fear of disclosure.

In some cases people will consent to have risky sex even when they know the person is positive. Currently the law doesn’t handle this situation well with blame being placed on the person living with HIV – even if no transmission occurs. Recent changes in the US (Iowa) have looked at Intent to infect vs Recklessness when considering these types of cases.

There are currently around 4,000 people living with HIV in New Zealand and a significant portion could have been prosecuted using this law.

This case highlights the need for more education and support to be provided to people living with HIV. If they are to hold responsibility for transmission from a legal perspective then significant prevention work needs to be funded in the area of Positive Prevention which educates people about their legal responsibility and the risks of transmission. The legal system also needs to be updated to current science which defines the risk of transmission and to assess the intent to infect.

Recent changes to the Health Protection Act making HIV a notifiable disease will have a significant impact on defining this legal responsibility and it is currently under review. The Act requires some refinement around public health risk but has potential to improve on the Crimes Act of 1961.

Body Positive will be doing significant advocacy work around the implementation of the new Health Protection Act and education for people living with HIV so they are fully informed




Mark Fisher, Body Positive - 12th March 2015

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