NZ Herald Editorial. Monday March 19, 2012
The law is generous to people with HIV who do not tell a sexual partner they have the virus. They have no obligation to inform their partner as long as they practise “safe sex”. It is only if they do not protect the unwitting partner to that extent that their failure to disclose their condition becomes a criminal offence, though not as serious an offence as it really is. Thanks to a court ruling last week, the offence will now be regarded more seriously – but only for the purposes of accident compensation.
The Court of Appeal has ordered compensation for a woman who was fortunate not to be infected but suffered post traumatic stress disorder when she learned her partner of four months was HIV positive. Under stress, she took so much time off work that she lost her job. She applied for compensation on grounds of mental injury but ACC refused her claim because the crime was not in one of the eligible categories.
Sexual violation is one of the eligible categories but the woman’s partner had not been charged with sexual violation. He was found guilty of an offence called criminal nuisance, for which he was sentenced to 300 hours community work and six months supervision, and ordered to pay her $1000 towards the costs of her counselling and other expenses.
She took the ACC claim to appeal and the court has ruled that the offence amounts to sexual violation. Three judges have reasoned that while she consented to unprotected sex, she would not have done so if she had known the man was infected. His failure to inform her had invalidated her consent and therefore his actions amounted to sexual violation.
Let us hope the judgment issued this week sets a precedent not just for ACC decisions but, far more important, for future prosecutions of those who expose an unknowing partner to the virus.
Criminal nuisance is a derisory name for what people have done and the danger they pose. They are a threat to others and deserve a custodial sentence.
In some jurisdictions, notably New South Wales and 29 states of the USA, the transmission of HIV is a crime. The Court of Appeal’s ACC decision notes the law in those places has been criticised as unhelpful in containing the virus and “overstates the seriousness of the disease given the quality of treatment now available”.
Tell that to the woman seeking compensation for post-traumatic stress.
New Zealand law has been lenient on advice from health professionals and the Aids Foundation that a relaxed approach would encourage carriers to seek treatment and practise safe sex. This and the discovery of antiretroviral drugs appears to have been successful in avoiding the epidemic once feared. But it would be dangerous if those living with HIV were to imagine that since it seems to be under control it is something they need not mention to a potential partner.
If their intimacy is accompanied by any real affection and respect they would surely not only take steps to protect the other person but allow him or her to make the decision for themselves.
It is wrong that the law effectively denies partners the information they need by allowing infected people to keep their condition secret on condition they use condoms. That may be “safe sex” to public health officials but everybody ought to have the right to decide what is safe enough for themselves.
The law has left confusion with this case.
The culprit is guilty merely of criminal nuisance and receives a non-custodial sentence while the victim’s experience has been adjudged to be sexual violation, capable of a mental injury that qualifies for compensation. The ruling correctly reflects the seriousness of the deceit; the criminal law needs to catch up