6 February 2018
Following a verdict handed down on 19 January 2018 in the Western Australia District Court, the Australian Federation of AIDS Organisations (AFAO), ASHM, the National Association of People with HIV Australia (NAPWHA), and the Scarlet Alliance (Australian Sex Workers Association) have highlighted the negative impact of the use of criminal law on Australia’s HIV response.
The WA District Court today remanded transgender woman CJ Palmer in a male prison, after delivering a guilty verdict of grievous bodily harm for the transmission of HIV to her ex-partner. CJ Palmer will remain in a male prison until sentencing on the 16 February 2018.
HIV is a public health issue that is better dealt with through the public health system.
In line with UNAIDS guidance, AFAO, ASHM, NAPWHA and Scarlet Alliance urge that the criminal law should not be used in cases of alleged non-intentional HIV transmission. Doing so has the potential to undermine public health objectives and increase HIV diagnoses. Australia's public health response to HIV has been highly effective.
Evidence shows criminalisation does not reduce HIV transmission, and the resulting stigma and discrimination build higher barriers to effective health promotion. Current laws in certain Australian jurisdictions counteract the promotion of effective prevention and shared responsibility, and the uptake of HIV testing and treatment, and therefore undermine effective public health.
Jules Kim, CEO of Scarlet Alliance, said: “This is an extremely unfortunate outcome, both for the individuals involved and for the wider community. The effect of this decision and accompanying sensationalised community discussion is a perception that people living with HIV are criminals. This unfairly reinforces discrimination against sex workers and people living with HIV, which is already pervasive in the broader community.”
Cipriano Martinez, President of NAPWHA said: “Our common objective is to reduce HIV transmission. The most effective way to achieve this is through community education, engagement and empowerment. There are alternatives to the criminal justice system that are more appropriate for the management of allegations of HIV transmission. Prosecutions for HIV transmission undermine the public health response to HIV by creating an environment of fear and prejudice. This reinforces stigma and contributes to further HIV transmission.”
Dr Bridget Haire, President of AFAO said: “The HIV epidemic will be ended in clinics and in the community, not in courts. We know that a public health approach is the most effective way of combating HIV transmission and that criminalisation isolates and marginalises people. The resources expended policing and prosecuting HIV transmission would be far better spent making HIV prevention tools and medicine available to people who need it.”
Scott McGill, Acting CEO of ASHM said: “Criminal cases involving HIV or exposure require that courts correctly comprehend the science of HIV transmission and the impact of HIV diagnosis. ASHM’s ‘Sexual transmission of HIV and the law: an Australian medical consensus statement’ provides clear and objective guidance in this matter and also recommends that HIV be dealt with as a public health and medical issue rather than a criminal one. The recent case highlights a number of issues including the use of un-validated scientific evidence.”
Australia's long established national public health Guidelines for the Management of People with HIV who Place Others at Risk contain robust intervention mechanisms that are more than adequate to deal with cases of HIV transmission without the need to engage the criminal law.
HIV is now a chronic manageable illness. People with HIV lead long and healthy lives. Australia has maintained virtual elimination of HIV transmission among sex workers, people who use drugs, and mother-to-child transmission. The prevention of HIV transmission is a shared responsibility that does not fall solely on the HIV-positive partner. HIV-positive people live with full human rights that confirm their sexuality and relationships.
Jules Kim, CEO Scarlet Alliance (Australian Sex Workers Association) said: “HIV prevention is extremely effective for sexual contact and HIV transmission risk is not increased by the exchange of money for sex. In Australia, sex workers have maintained incredibly low rates of HIV. Sex workers living with HIV can routinely exchange sex for money without putting themselves, or their clients, at risk.”
Stigmatised reporting of HIV transmission undermines public health and creates an environment of fear in which people are reluctant to test, and people with HIV cannot disclose their status. Reporting of this case has often been sensationalised, highly stigmatising and disrespectful.
Descriptions of CJ Palmer have incorrectly referred to her as a “man who identifies as a woman”, as well as referring to her as a "prostitute” instead of using the correct term of "sex worker”.
We encourage media organisations reporting on this, or any other HIV-related cases, to make full use of the AFAO HIV Media Guide – www.hivmediaguide.org.au and the ASHM resource, Sexual transmission of HIV and the law: an Australian medical consensus statement.