In the majority of cases heard before the Magistrates and District Courts there is a clear perpetrator and victim. Sometimes, the dividing line between perpetrator and victim is not as easy to demarcate.
In the recent Court case of C J Palmer, there are two victims. The young person who has contracted HIV and C J Palmer. Both have particular personal challenges, the one to learn to live constructively and with dignity with a chronic illness and the other to live constructively and with dignity in a system that would seek to take these away from her.
Apart from the above, it is not my intention in this article to deal with the personal realm but to ask a broader question – has justice been served and at what cost? Those within the community who are perhaps unaware of the advances in medical treatment for HIV may think that with a sentence of 6 years, justice has been served. Yet, as I pointed out in an earlier article, retributive justice is only one aspect of justice. Justice has other strands to it, for example reconciliation as evidenced by the Reconciliation Tribunals in South Africa at the end of apartheid. Another aspect of justice is education. Officials with the Justice system would argue strongly that prison’s have an educative role in educating prisoners for re-entry into the community after the sentence has been served.
Retributive justice is always the most expensive form of justice because it involves incarcerating people and employing staff to ensure the prison system remains coherent and not disintegrate into violence and riots.
With a 6-year sentence and a minimum 4-year non-parole period has these other strands of justice been served? While acknowledging the young person may not want or be ready to consider reconciliation, does a 6-year sentence allow for the possibility of this to occur should the parties so wish? It is more challenging for this to happen within the prison system.
What about the educative aspect of justice? What skills does a woman learn during 4 years in a male prison? What programs are in place for a woman in a male prison that will assist her re-integration into the wider community once the 4-year period is over?
The Saturday’s West Australian has reported that Judge Stevenson in his sentencing acknowledged that “social stigma is still attached to HIV despite the advances in treatments” and that “there is still in the community a great deal of learning and education required”.
The advances in treatment His Honour speaks of means that HIV in 2018 is a treatable illness. Treatable in that it is manageable. Just as a person with diabetes must monitor their blood sugar levels, so a person with HIV has to maintain regular medication and to ensure they maintain a non-detectable viral load. A person who maintains a low viral load is unable to transmit the virus to another person and can enjoy a productive, healthy and enjoyable lifestyle including an active, regular sex life.
While His Honour acknowledges further community education and learning is required, the sentence he has imposed risks increasing the very social stigma he speaks about. This risk is that the take home message for the average person on the street is;
- The passing of HIV is criminal;
- It is dangerous enough to warrant a sentence at the upper end of the range associated with grievous bodily harm; and
- If I have HIV, I better either be quiet about it and risk imprisonment or disclose it and run the real possibility of being isolated and victimised
HIV is a public health/medical issue not a criminal matter. The Joint United Nations Programme on HIV/AIDS stated in its 2008 Policy Brief”:
“There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV Transmission. Rather, such application risk undermining public health and human rights.”
Furthermore, criminalising HIV transmission contradicts the Public Health prevention message adopted by successive Australian governments and Departments of Health as evidenced in the Seventh National HIV Strategy 2014 – 2017.
Therefore, I ask again – has justice been served?
I would argue strongly that justice has not been served for several reasons.
- The possibility of reconciliation or at least rapprochement between the parties has been made more difficult.
- The educative aspect of justice is compromised for a woman in a male prison.
- The economics of justice is not sustainable. As a community our taxes will spend close to $1,000,000 dollars for one person for 4 years when they could be accommodated within the community for far less.
- The United Nations and successive Australian governments are all agreed HIV is no longer a criminal matter but a public health issue.
This case highlights the need for governments to rescind and remove outdated laws such as the criminalisation of HIV and ensure that public health policy and laws do not contradict each other. It also highlights the need for the judiciary to keep abreast of current medical opinion and scientific knowledge and where necessary tread lightly until laws are updated to reflect current understanding rather than handing down sentences that can potential re-inforce stigma and social isolation.
'She's Chill - Looking After Yourself, with Taylor and Lilly' is a film and resource focused on good sexual health for young Aboriginal & Torres Strait Islander people.
'She's Chill...' takes a humurous look at STIs, testing and the relationship between sisters.
Health services in Western Australia can order a copy of the film, plus it's accompanying booklet, by completing and returning the form below.
|Accompanying Booklet||Order Form|
Today, the Pharmaceutical Benefits Advisory Committee (PBAC) recommended that PrEP be listed on the Pharmaceutical Benefits Scheme (PBS).
The Australian Federation of AIDS Organisations (AFAO) expects PrEP to be available through the PBS in coming months. The recommendation includes general schedule listing which means PrEP will soon be available to people through their GP. The Government is expected to announce a listing date soon.
This decision means Australia will be among the first countries in the world to have publicly funded and universal access to PrEP.
The implications for Western Australian's is as follow:
- PrEPIT-WA, the WA PrEP trial still runs as per normal
- Personal importation continues as an alternative option for those who choose it, or Medicare-ineligible people who do not meet the trial eligibility criteria.
See the full media release and fact sheet from AFAO below.
|Media Release||Fact Sheet|
In many forms of bondage and sadism, pain is inflicted by the Master or Domatrix on the sub. Sometimes, it is extreme pain, taking the sub to the limits of his or her pain threshold. Yet these forms of sexual behaviour are generally not criminalised because both parties consent to pain being inflicted.
Fisting is another sexual behaviour that carries inherent risk of infection or bowel perforation, yet to my knowledge there has been no successful prosecution by the person being fisted against the “fister” for perforating their bowel or introducing infection into their intestines. Why? Perhaps because no one has yet bought such a case to trial but also there is consent between the parties.
We may not understand bondage or sadism as a sexual practice and the thought of fisting or being fisted may leave us perplexed, however such practices have not been criminalised. Given the element of harm and risk in these practices it is interesting to reflect on why some elements of sexuality are criminalised and others are not. Why is it that some elements of sexuality lie within the realm of personal idiosyncrasies while others are seen as lying within the realm of public morality and hence more open to being criminalised? What is the influence of fear, prejudice and stigma in the wider population that results in certain areas of sexual activity being criminalised?
Under the Criminal Code Act Compilation Act 1913 (WA) grievous bodily harm is defined as any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health
The actual crime of grievous bodily harm is outline in s.297 of the Criminal Code as “any person who unlawfully does grievous bodily harm to another is guilty of a crime….”
In other words, any person who unlawfully causes a bodily injury of such a nature as to endanger or be likely to endanger life or cause permanent injury to health is guilty of grievous bodily harm. As outlined above there are sexual practices that may be likely to endanger life or cause permanent injury to health which are not criminalised.
This raises the question as to whether HIV is likely to endanger life or cause permanent injury to health. Medical and scientific evidence is very clear that HIV in 2018 does not endanger life. Anti-retroviral therapies (ART) enables people who contract HIV to live productive, long and healthy lives. A similar example would be diabetes. Does diabetes endanger health? Uncontrolled it does lead to health complications, controlled by exercise, diet and/or medications people who have diabetes live productive lives.
I mentioned above about consent which brings us to the consideration of criminal responsibility. Section 23 B of the Criminal Code (2) states a person is not criminally responsible for an event which occurs by accident. In the examples given above, if a Dominatrix accidentally harms her client, she is not necessarily guilty of grievous bodily harm.
To translate this to the example of HIV, if two consenting adults engage in sex and one of the people is HIV positive and their viral load is still detectable, and they infect the other person have they committed grievous bodily harm? The medical evidence would clearly indicate the person’s life is not endangered, that instead they have a chronic medical condition that can be managed but will not endanger or permanently risk their life. Hence the medical evidence runs contra to the legal definition.
There is also the fact that both parties consented to the sexual activity. Consent implies responsibility. We must take responsibility for what we consent to. In taking that responsibility, we must weigh up the risks of what we are and are not prepared to accept.
There are still misconceptions and fear around HIV. It is often conflated with AIDS related illnesses. The fear of the epidemic of the 80’s still lies within the subconscious of many people and influences their prejudices and assumptions.
We need to exercise care to ensure there is dialogue between scientific evidence and legal definitions, so the administration of justice is both fair, equitable and scientifically sound particularly in this area of sexuality and public morality. Without such a dialogue occurring, the administration of justice can easily be influenced by unconscious prejudices, fear and unscientific assumptions that may result in criminalisation of what are in effect public health matters.
 The Criminal Code (WA) s.1 pg.29
NAPWHA is developing an advocacy agenda for HIV and ageing in recognition of the fact that more than 50% of the people with HIV in Australia will soon be over the age of 50.
- The Government is developing an LGBTI Action Plan as part of a new Aged Care Diversity Framework. NAPWHA acknowledges that a number of people living with HIV are also part of the LGBTI communities and is inviting people to contribute to the survey. We are keen to ensure the voices of older people living with HIV are heard in this consultation.
- This survey will inform the Government about the particular needs of LGBTI communities in Australia, including those with HIV. The Aged Care Sector Committee Diversity Sub-Group will also develop action plans for: Aboriginal and Torres Strait Islander people; and people from Culturally and Linguistically Diverse (CALD backgrounds).
- The LGBTI Health Alliance is holding in-person consultations across Australia and conducting an online survey to ensure your experiences and wisdom are included.
- Contact firstname.lastname@example.org for more information
Ways to get involved:
Sharing the Journey is a short film interviewing a range of people living with HIV about their experiences with diagnosis, work, stigma and discrimination, relationships and treatment.
Each person offers a unique perspective on what it is like to live with HIV, the challenges they have faced, and what the future looks like. On the 15th June 2017, the film was premiered for staff, stakeholders and people involved in the film, at The Backlot Studios in West Perth. Thank you to Healthway for funding this project, and to our team of staff who worked tirelessly to ensure it's success.
Despite living happy and healthy lives, the stigma of HIV continues. HIV positive people often need to hide their status from friends, family and workplaces, for fear of discrimination.
Getting tested, knowing your status and starting treatment is the best way for us to end HIV in Western Australia. With condoms, PrEP, PEP and undetectable viral loads, we have more tools available to us than ever before.
Together, we can end HIV.
Downloadable Campaign Posters
The STYLEAID Icon Photographic Exhibition Launch was held in Centre Court, Karrinyup Shopping Centre on Monday 19th June.
The event was a huge success, with 137 people attending the event, and 15 out of 40 photographs sold for $250 each.
A big thank you to Karrinyup Shopping Centre for hosting the event, the talented photographers for donating their work, and to everyone who made this event possible.
Thank you to our volunteers Christian Mendoza, Nat Gray and Cian Breen on the night. Christian did a terrific job operating the GIF camera, which was lots of fun for staff and guests. Nat and Cian did a fabulous job warmly welcoming the VIP guests to the event. If you are interested in volunteering for the main STYLEAID event, please contact our Volunteer Coordinator Kristina Mitsikas on 9482 0000 or email@example.com.
STYLEAID Icon 20 will be held on Friday 4th August 2017 in the Crown Ballroom, and tickets are on sale NOW!
Get in quick to attend the FINAL STYLEAID event, as we prepare to say goodbye after 20 wonderful years.
For tickets, go to www.styleaid.com.au, call 9482 0000, or contact Mark Reid on firstname.lastname@example.org
This year, STYLEAID will host a parade unlike any that have been shown in Perth, featuring 20 of Perth’s top designers to celebrate 20 years of the event. The night will be filled with iconic, historical fashion that will thrill and delight the audience. STYLEAID is recognised for its continued collaboration of fine wine and dine-ing. Its association with sponsors such as LaVie Champagne Bar, Brazilliano Coffee, San Pellegrino, CROWN Perth, and European Foods together with other premium brands including, Tanqueray Gin, Johnnie Walker Black, Vinaceous Wines, Grouch & Co, M.A.C, Club Med, L’Oreal Paris, Baci, Daniels Printing Craftsmen, Stockman Paper, MATSO’s, Network Ten and NOVA 937 helps to ensure the success of the event. Over the past 19 years STYLEAID has managed to raise over $1,500,000+ to assist in funding projects for the WA AIDS Council, and vital research for sexual health in WA.
Photography by John Koh below.
Collaborating for evidence, research and impact in public health
We are conducting a group discussion exploring what stops South East Asian men testing for HIV, and what we can do to increase HIV testing.
We want YOU if you are:
✔ Born in South East Asia
✔ Have sex with men
✔ Have good english conversational skills
Closes Friday 4th August
Please contact Matt Bacon (08 9482 0000, email@example.com)
This study has been approved by the Curtin University Human Research Ethics Committee (HREC2017-0088)