The New Zealand Aids Foundation (“NZAF”) – a registered charity with the Charities Commission – has engaged in “political advocacy” so it would seem – by publicly expressing its serious concerns over the implications of a ruling issued yesterday by the Court of Appeal (CoA) that sets a precedent for people who unwittingly sleep with an HIV-positive person, to be covered by ACC for mental injury.

An unnamed woman had been fighting for six years to reverse ACC’s refusal to cover her mental injury caused after she discovered that her sexual partner had not disclosed to her that he was HIV positive. He had been found guilty of the offence of “criminal nuisance” for his actions, but ACC did not recognise this particular offence as one of the “sexual crimes” for which victims could claim an ACC payout for mental injury. The woman’s lawyer, John Miller, successfully argued in the CoA that she had been subjected to “sexual violation” (rape) by her partner, because he had taken away her right to “informed consent” by denying her knowledge of his HIV-positive status. Sexual violation is recognised by ACC as a sexual crime for which an ACC claim can apply in the case of mental injury.

The impact of the CoA ruling released yesterday, on criminal law, would be far reaching the women’s lawyer John Miller said. It meant that a person who did not disclose their HIV status before having unprotected sex could be charged with sexual violation, which has a maximum penalty of 20 years’ jail.

At the moment, an HIV-positiver person who does not disclose their infection status to their sexual partner and has unprotected sex, could be charged with a less severe offence such as “criminal nuisance”, which has a maximum penalty of one year imprisonment if the virus is not transmitted. If HIV is transmitted, a person could be imprisoned for up to seven years.

NZAF is very concerned over the impact of CoA decidsion because it (NZAF)  does not support further criminalisation of HIV transmission.  In its view, current penalties are adequate for the small number of offences that come before the courts.

“We would be seriously concerned about New Zealand’s management of the HIV epidemic if people were charged with sexual violation, ” executive director Shaun Robinson said.

“The results would be a significant decrease in HIV testing and increased stigma and discrimination against people living with HIV.”

Any registered charity daring to speak out in favour of this CoA ruling and in favour of the woman’s brave efforts to seek justice against the perpetrator of this horrendous sex crime committed by an HIV infected male, face accusations of committing a’crime’ themselves – that of engaging in ‘political advocacy’ and/or promoting a narrow moral viewpoint (as defined by the Charities Commission).

In contrast, the “perpetual advocacy of a particular point of view” (in this case one that that effectively downplays the seriousness of the sex crime of knowingly transmitting HIV – by the insistence that it be treated by the courts as mere “criminial nuisance” activity such as vandalism) is vigorously espoused by those who actually do have “political purposes” (i.e. NZAF).

The Court of Appeal ruling, which follows that of a recent Canadian Supreme Court ruling on the same matter and was relied on by John Miller in his presentation to the CoA, is the correct one in law. It determined that the criminalisation of HIV transmission in the case before it, was not a mere case of “criminal nuisance” but involved “sexual violation”.

An HIV-positive person who commits a sex crime (or any other crime) should be treated no differently to anyone else, including anyone who is infected with any other disease, who commit the same crime. The challenge for legislators is to ensure that on sentencing, the sentence that can and should be imposed under law, is commensurate with the seriousness of the crime committed.

Sources: The Dominion Post, Tuesday, March 13, 2012, p. A5.

Checkpoint – National Radio, Monday, March 12, 2012.