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Jonathon -- need your input regarding legislation

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Matty the Damned:

Here in NSW there are two specific laws dealing with this issue. One is under the Public Health Act 1991 which allows the Department of Health apply to a court for an order to restrain someone who is knowingly infecting others with a notifiable disease. People under these orders can be detained "at Her Majesty's pleasure", which mean indefinitely.

The NSW Crimes Act 1900 makes deliberately infecting another person with HIV an offence called causing "grievous bodily disease." The penalty is a lengthy prison term. Several people have been prosecuted and sent to gaol for this particular offence. All heterosexual men, if memory serves.

For what it's worth, I agree with the legal provisions of the Public Health Act 1991 but I have concerns about prosecuting HIV positive people under the Crimes Act in this regard.



There is actually another law under the Public Health Act in NSW:

The Public Health Act says that if you have a sexually transmissible medical condition you must not have sexual intercourse with anyone unless you have disclosed to that person the fact you have that condition and the other person voluntarily agrees to accept the risk of transmission.   The maximum penalty for breaking this law is a fine of $5,500.

This law does not provide any defence of using a condom or taking any other precautions to prevent transmission.   In other words, you commit this offence if you have HIV or any other sexually transmissible infection (STI) and fail to disclose that to your sex partner, even if you use condoms for sex.

This law defines sexual intercourse as meaning the introduction into the vagina, anus or mouth of a person of any part of the penis of another person, or cunnilingus.   In other words, this law requires disclosure about HIV or STIs for oral, anal and vaginal sex.

My concerns with making disclosure a law is firstly, that it discourages people from testing for HIV or any ohter STD. If you don't know then you don't have to disclose. Secondly, I think it can lead to a fall sense of security - if the other person doesn't disclose anything then they must be free from HIV or other STD's and it's OK to have unsafe sex. And, thirdly given that sex is usually carried out in private between two people how do you prove or disprove that the person has disclosed?

Matty the Damned:
Little Steve is correct. I had forgotten about the disclosure provisions of the Public Health Act 1991. There is a gaol term (12 months I think) in addition to the $5000 fine.


I agree with Steve about the potential dangers of criminalizing non-disclosure.

Here's a longer Canadian article that might help you with your decision.

The Cuerrier Decision: Public Health and the Criminalization of HIV Serostatus Non-Disclosure


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