SPCS

SOCIETY FOR PROMOTION OF COMMUNITY STANDARDS INC.

NZ Aids Foundation position on ‘rights’ of HIV-positive sex partner is “unconscionable”

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Nothing but truth for HIV sex partners.  The Dominion Post Editorial. March 125, 2012

“[The NZAF] position is a cop out … It is irresponsible and does nothing to engender confidence that [this registered charity] has the community health as its highest priority”

THE NZ AIDS FOUNDATION [a registered charity with the Charities Commission] supports the right of HIV-positive partners to conceal their condition from their sexual partners provided they use proper protection. It could not be more wrong.”

Everybody who enters into a sexual relationship has a fundamental right to be fully informded about any risk they might be exposing themselves to. HIV might not be the near-cerrtain death sentence it once was, and the risk of transmitting it through sex might be small with the right protection, but there is still a risk. Condoms can be faulty, they can break and can be ineffective if not properly used. It is unconscionable to advocate the right for somebody to expose another person to that risk without them knowing.

The Court of Appeal ruling that awarded ACC cover to a woman who suffered mental trauma after discovering she had been having unprotected sex with an HIV-positive man sets an important precedent in that regard. It opens the door to sexual violation charges in cases where people who have the disease fail to tell their partners.

Justin Dalley, the man at the centre of the case, knew he was HIV-positive, but deliberately withheld that from his partner till she was told by a mutual acquaintance. She was lucky not to contract the disease herself, and the six-month wait to be cleared caused her serious distress.

The issue for the Court of Appeal was not whether Dalley infected his victim, but whether she gave fully informed consent to the unprotected sex. She says that had she known he was HIV-positive, she would have refused. The court has found that Dalley’s failure to disclose his [HIV-positive] status nullified consent, and so was a sexual violation for the purposes of ACC cover.

To what extent it can be applied to criminal cases is yet to be tested. So too is the issue of whether it applies to other sexually-transmitted diseases and cases where people fail to disclose their status, but use protection to limit the chances of infecting their partner.

There is legal precedent on the latter question, set in another case involving Dalley and a second woman. He did not tell her he had HIV, but the district court found that by using a condom he had met his legal duty to take reasonable precautions to avoid infecting her.

Whether the Court of Appeal ruling affects that decision is not clear. In any case, it is almost ceretsain that if it is used as the basis to charge someone with sexual violation in the future, it will be challenged.

The Aids Foundation claims that allowing sexual violation charges against people who know they have HIV but fail to tell their sexusal partners will increase discrimination and lead to a “significant decrease” in testing. That is a cop-out. The Court of Appeal case was not about the rights of people with HIV, but the rights of those with whom they wish to have sex to have a full understanding of the possible consequences.

The Aids Foundation disagrees. It is happy for those who have HIV to keep that secret from their sexual partners, provided they use condoms and lubricant. Its position is irresponsible and does nothing to engender confidence that it has the community’s health as its highest priority.

Source: The Dominion Post Editorial. Thursday, March 15, 2012, p. B4. [Emphasis added]

http://www.stuff.co.nz/dominion-post/comment/editorials/6575163/Editorial-Nothing-but-truth-for-HIV-lovers

 

Sexual Abuse Services and other registered charities support Court of Appeal HIV + ruling

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Radio New Zealand’s Checkpoint programme has reported that Sexual Abuse Services nationwide are backing a Court of Appeal decision (KSB vs ACC) issued on Monday which ruled a woman had the right to ACC compensation for the mental stress suffered, after finding out a man she had been having unprotected sex with had HIV. He had failed to inform her [in the course of their four month relationship] that he had been diagnosed HIV-positive (“hiding HIV a sexual violation”).

There are at least ten separate charities registered with the Charities Commission that offer sexual abuse services.

Checkpoint included brief comments from the Chief Executive of Victim Support Sertvices and the National coordinator of the Rape Crisis Collective on the same matter and both stated clearly that their respective organisations are  backing the Court of Appeal ruling.

There are ten charities registered with the Charities Commission offering victim support services and seven registered charities in the Rape Crisis collective alone..

In total there are at least 30 charities registered with the Charities Commission working in the areas of sexual abuse prevention, rape crisis and victim support that have backed the Court of Appeal ruling. Only  one registered charity – The NZ Aids Foundation – has spoken out publicly against what has beeen described in the media as a “major precedent in NZ law” created by this Court of Appeal ruling. [Read more…]

NZAF – political advocacy – concerns over Court of Appeal HIV + decision

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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.