Sex and Grievous Bodily Harm

The West Australian has reported another man is facing criminal charges over accusations he knowingly transmitted the HIV virus to two partners. The allegations are, the person caused aggravated grievous bodily harm.

This article is the first of three. In this article I want to look at grievous bodily harm and how it is being used to bring charges against people for the transmission of HIV. The next article will look at consent and the third will look at our mutual responsibility.

I re-iterate that in matters like this one there are no winners and that we need to be careful in forming judgements too quickly. The comments below are made in a general context and not intended to imply or make assumptions about what occurred between the three individuals in this matter.

The Criminal Code states that a person who does any act likely to result in another person having a serious disease is guilty of a crime [s.294 (1) (h)]. The crime is grievous bodily harm.

The Code gives two proviso’s around this “act that is likely to result in a person having a serious disease”. The first is, the act must done with intent to maim, disfigure or disable [s.294]. The second is that “the act is likely to result in the person having a serious disease”.

Under the Act, a serious disease means a disease that endangers a person’s life or be likely to endanger life or to cause permanent injury to health. 

It would appear from the current cases, the law is being applied strictly when it comes to transmission of HIV. Basically, if a person who has HIV has sexual intercourse with another person and infects them, they are deemed to have knowingly engaged in an act with intent that is likely to cause such a serious illness to the other person that their live is endangered or at least put at risk of permanent injury.

A stringent interpretation of the law generally runs into problems when it is strictly applied in the area of sexuality which is often a grey area of morality, desire and the right of the person to privacy.

For example, how is a person’s intent to main, disable or disfigure determined in the context of a consensual sexual encounter? Does the person have that intent or is their intent to simply engage in sexual activity?

I would argue, that in the majority of situations where there is consensual sexual intercourse there no intent to maim or disfigure. [The exceptions to this would be rape or where sexual activity is taking place without consent].

The other challenge with such a strict application of the law is the perception that HIV is a serious disease that endangers a person’s life or is likely to cause permanent injury to health.

Advances in the treatment of HIV do not support such a view. Treatment now means it is unlikely a person, in Western societies with access to treatments will experience HIV as endangering their life. HIV with treatment is a chronic and manageable disease. 

I have written previously on the de-criminalization of HIV and the importance of laws keeping pace with current medical knowledge and advances to reduce stigma and discrimination, particularly in areas where stigma and lack of knowledge can subtly influence potential juror’s underlying assumptions about a case.

However, as it appears the law is being applied strictly and until we can bring about law reform we need to exercise care.

So what do we do?

If we are positive then it is important to be taking medication and be under care. The message of U = U is that taking medication and have an undetectable viral load for six months of more means we cannot pass the virus to another person during sexual intercourse. 

Staying on medication and treatment can be challenging when life throws us a “curve ball” and things become chaotic. At these times we have a responsibility to make sure we have the support we require to help us manage the crisis we are experiencing and continue to stay on our treatment.

If we are negative, we still have a responsibility, it is the responsibility to manage our own sexual health and protection. If we consent to engage in sexual activity with another person then it is our responsibility to ensure we protect ourselves and not leave that to the person we are with.  If we are negative, we have a further responsibility to increase our knowledge and understanding of HIV so that we are not contributing to the stigma and discrimination that so many HIV positive people feel. I will write further of our mutual responsibility to each other in my third article.

When the law is being applied strictly and people are being charged, convicted and imprisoned for HIV transmission we need to take care in our personal sexual encounters, we need to increase our knowledge and the knowledge of our friends and family about the treatment of HIV and how in Australia it is a manageable condition where people live constructive, healthy and long lives. Finally, we need to change the laws so that rather than contributing to stigma and discrimination, HIV can be dealt with as a public health matter.

David Kernohan

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