This editorial appeared in today’s Taranaki Daily News (known locally as the Daily Snooze) and is particularly ill-informed and unpleasant. It concerns the case of a woman who sought compensation after having consensual sex with a man who she later discovered was HIV positive. It appears that this was unprotected sex, and although the woman did not herself contract HIV, she suffered trauma as result of her discovery and this resulted in financial and other losses.

Few would disagree with criminality being ascribed to a person deliberately putting another person at risk including the potential transmission of HIV. Although, I do wonder whether the precedent established in this case could also apply to me were I to subsequently discover that a person who drove me home was over the legal alcohol limit for driving.

What really bothers me about this particular editorial is the language it uses and how it draws from the actions of a single individual to an entire population of people living with HIV. It refers to “HIV victims” and states that New Zealand has had its share of HIV predators.

It makes no mention of the concept of shared responsibility, or that a person who consents to unprotected sex is ipso facto knowingly putting themselves and their partner at risk, since not everybody who has HIV knows that they have it. Nor does the article put the actual number of instances of this offence into context. These so-called HIV predators constitute a tiny minority of the number of people living with the virus. Nonetheless, the editoral seems to suggest that all people with HIV should be required to disclose their status because a few people may at times be irresponsible.

The editorial concludes by posing a question after the NZ AIDS Foundation reminded people living with HIV that they are not required to disclose their status prior to protected sexual intercourse:

It also told HIV sufferers after the court decision this week they do not have to tell their partner. But it raises the simple question: why wouldn’t you?

The simple answer to their question is that it is because of the stigmatised language, attitudes and opinions represented by editorials such as this.

(For good measure, I have also appended an article from the Society for the Promotion of Community Standards)

Editorial: Court makes pillow talk compulsory

14 March, 2012 – Taranaki Daily News

OPINION: There are already cases where consensual sex can result in a rape charge – sleeping with a person under the age of 16, for example. Now, thanks to a significant ruling by the Court of Appeal, there in another.

A woman’s quest for Accident Compensation Commission cover for stress suffered after learning her partner was HIV positive has resulted in a precedent setting ruling which redefines rape.

The court said the man’s actions constituted sexual violation for the purposes of ACC legislation and the woman should be covered.

While the issue has still to be tested in a criminal context, the woman’s lawyer, John Miller, interprets that to mean an HIV victim who sleeps with a willing partner but does not disclose the condition can be charged with rape.

The Aids Foundation believes an HIV sufferer who practises safe sex should not be required to disclose his medical condition.

It is concerned the Court of Appeal ruling discriminates against HIV sufferers and foundation executive director Sean Robinson says the law is already adequate in dealing with people who do not disclose their disease. The ruling, though, carries a greater level of accountability and makes sense.

New Zealand has had its share of HIV predators who have knowingly put partners at risk. It was alleged Glenn Mills was anti safe-sex and would rip or remove condoms. When he was outed, more than 100 people came forward to be tested for HIV. Seven were positive. Mills, 40, died before he went to trial.

At least one of Mills partners wrongly thought he had practiced safe sex. That underlines the weakness of legislation which sees nothing wrong in HIV victims not disclosing their condition.

The woman, whose name is suppressed, took on ACC after being exposed to the risk of HIV by John Dalley in 2004. HIV-positive Dalley was found guilty of criminal nuisance in 2005.

His victim did not contract the virus but suffered post traumatic stress and lost her job because of the time she took off work. ACC declined to cover her for her mental injury because sex was consensual and criminal nuisance was not on its list of crimes for cover.

The court’s ruling may not provide additional physical protection to victims of HIV predators, but it does ensure they will qualify for a higher degree of support.

The court decision comes in the week former NBA basketballer Magic Johnson, who told the world he was HIV positive in 1991, featured in an ESPN programme, The Announcement, telling his story.

Twenty one years ago the world thought it was looking at a dead man walking. Today he is a successful businessman living on an expensive cocktail of drugs as scientists inch closer to finding a way to tackle the virus rather than nullify it.

The Aids Foundation argument that those infected with HIV risk being further stigmatised by society if they face harsh punishments in the legal system seems to miss the point.

It also told HIV sufferers after the court decision this week they do not have to tell their partner. But it raises the simple question: why wouldn’t you?

-        © Fairfax NZ News

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

By SPCS | Published: MARCH 13, 2012

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-positive 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 decision 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 commits 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.