Magistrate's ruling undermines public health
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The best public health outcome would have been to drop all charges and remind ACT residents that people with HIV exist everywhere. (AFP: Ahmad Zamroni)
A HIV positive man in Canberra has been jailed for more than two months in the ACT after a high profile public prosecution, even after the magistrate admitted that it is impossible to know if unprotected sex had ever taken place.
Magistrate John Burns turned back the clock on many years of experience and taxpayer-funded work in HIV prevention and management and used an antiquated Australian law from a time when an HIV diagnosis was certain death, to criminalise, stigmatise and discriminate against current sex workers living with HIV.
This year at the AIDS 2008 International HIV conference in Mexico, a large number of delegates called for worldwide decriminalisation of people with HIV, claiming that the criminalisation forces people with HIV underground and increases resistance to testing which, in turn, increases the rates of HIV transmission.
In ACT, as a direct result of this years high profile prosecution, we have seen the local sex workers fear of testing increase, with the regularly monthly outreach clinics figures dropping from 40 per month to two per month, as a direct result of this case. This was reported to the Attorney-General, Simon Corbell, a week prior to the sentencing. At that time Corbell admitted, "We know that with appropriate safe-sex measures in place, the risk of transmission is negligible."
There has also been much written about best practice for public health policy in relation to the management of HIV, with the ACT only recently signing the national guidelines on the management of people with HIV who place others at risk. This document also recommends using criminal prosecutions as a last resort and only for cases of serious intentional transmission.
The rationale for this approach has been highly researched in Australia with the understanding that HIV cannot be eliminated, it's here to stay and we all need to learn to live with it. This means that for casual sex, including sex work, all people involved need to assume that everybody is, or could be, HIV positive. This is true whether they know their status or not, as many do not yet know they have HIV.
Therefore, it is far more dangerous to give the impression that a certain sector of society is HIV free, as this will increase the incentives to forego safe sex. Couple this with harsh penalties for people who take steps to learn their status, it creates a dangerous situation where HIV can thrive and transmission rates skyrocket.
Research has been done throughout the world that supports this, taking into account the many different countries' experiences in sex industry settings and amongst gay men. Magistrate Burns claimed his judgement was in the interest of public health, however his evidence for this claim is now so out of date, it's negligent at the very least.
The best public health outcome would have been to drop all charges and remind ACT residents that people with HIV exist everywhere, and the only effective strategy for Australians to protect themselves is to use condoms and water based lube.
I know people are sick to death of hearing the safe sex message, but the alternatives are far scarier, and that would be having untested, undiagnosed and unchecked HIV infections running rampant in people who are too scared to get tested and claim to others that they have never tested positive to HIV.
Kane Matthews is the author of The National Needs Assessment of Sex Workers who live with HIV, commissioned by Scarlet Alliance, the Australian Sex Workers Association.
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Comments (51)
Comments for this story are closed. No new comments can be added. If you would like to have your say on this issue, you can do so via the Emails section of our Opinion pages.
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Paul:
23 Sep 2008 9:09:29am
This case highlights how far we still have to go in raising awareness of HIV and in developing effective public policy to combat this virus. The recent case in the ACT demonstrates that HIV-positive people are considered a threat to public safety per se, regardless of the efforts they are making to prevent transmission of HIV.
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yabbie:
23 Sep 2008 9:09:31am
'...from a time when an HIV diagnosis was certain death'. Can anyone out there inform me of the cure we have for HIV that prevents certain death?
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Ford:
23 Sep 2008 9:18:18am
HIV never killed you, it simply damaged your immune system to the point where you were susceptible to a variety of other infections and illnesses, and that was what killed you.
Now the effects are, as I understand it, largely negated by a cocktail of immuno boosting drugs.Agree (0) Alert moderator
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yabbie:
23 Sep 2008 9:52:55am
HIV is the underlying reason that such infections both impact on quality of life and are fatal. Without HIV/AIDS those infections would be of no concern. Given this, HIV does kill.
Between 1.8 and 2.3 million people died of AIDS in 2007.
The people I have cared for with AIDS are thankfull for the therapeutic benifits of medical intervention, however, see their treatment as simply postponing the inevitable.
Watch a few people deteriorate then die from AIDS related infections then tell me that AIDS does not kill, and that available medicinal therapies ammount to a cure.Agree (0) Alert moderator
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Ford:
23 Sep 2008 12:25:37pm
Hey, you know what?
Actually everyone like, dies eventually.
A person with HIV (not the same as AIDS, your post indicate don't understand that, which is surprising coming from someone who claims to have cared for people with HIV), might live for years longer than someone with, say, cancer...does that mean that cancer treatments (treatments, not cure, another distinction you don't appear to grasp) are pointless because they're just 'delaying the inevitable'?Agree (0) Alert moderator
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yabbie:
23 Sep 2008 1:11:36pm
Yes, I am well aware of the difference between Human Immuno-deficiency Virus and Acquired Immunodeficiency Syndrome.
I have specifically made reference to HIV when I mean to disciss HIV, referred to AIDS when I have meant to refer to AIDS and referred to both when I mean to refer to both HIV and AIDS.
My initial post was in regard to the statement '...from a time when an HIV diagnosis was certain death'. The diagnosis of HIV and AIDS is still certain death and furthermore, in all liklieness, this death will be premature as a result of processes resulting from Human Immuno-deficiency Virus.
In this statement regarding 'certain death' the authors implication is of cure, which is impossible. Having been employed by State Government to case manage people diagnosed with AIDS who have subsequently died, I am concerned when the terminal potential of AIDS is understated.Agree (0) Alert moderator
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Julie:
24 Sep 2008 10:49:17am
Hello Yabbie. I too am a carer of people living with HIV/AIDS and the one thing I can give my clients that you don't seem to understand the first thing about, is hope and an expectation of a full and happy life. Where there is life there is hope and new drug treatments have certainly enabled many of my mates to get on with their lives and continue to contribute to society.
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Paul:
23 Sep 2008 9:22:51am
There may be no cure for HIV, but the advances in treatments over the last 12 years have meant that people who take HIV treatments can now expect to lead relatively normal lifespans. A study published in the July 26, 2008, edition of The Lancet showed that an individual starting successful HIV treatment aged 20 would be expected to live to be 63, and that a patient initiating an anti-HIV drugs regimen aged 35 could live to the age of 67.
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Jeremy:
23 Sep 2008 9:27:01am
It's not an issue of cure, rather it's easily possible to manage the virus and prevent people from dying from it indefinitely with the right medical care. Just like there is no cure for diabetes or asthma, but neither is seen as certain death.
Medical science has managed to improve over the last 30 years...Agree (0) Alert moderator
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Peter:
23 Sep 2008 1:23:54pm
An infection with HIV is these days considered to be a chronic disease, and like diabetes, is controlled to a varying degree, by medication.
Persons do not die from HIV infection but from opportunist diseases, which are contracted in the event that uncontrolled HIV destroys or compromises the immune system and, as a result, the AID Syndrome becomes evident.Agree (0) Alert moderator
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yabbie:
23 Sep 2008 6:24:36pm
Another cliche often adopted is that 'Schizophrenia is an illness, a bit like diabetes'.
So, people with HIV are a bit like people with schizophrenia, who are a bit like people with diabetes, who are a bit like people with Chrones disease who are... In reality, these ailments have little in common.
If I had the choice I would choose diabetes over , how about you?Agree (0) Alert moderator
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twobob:
23 Sep 2008 9:10:02am
The world could have stopped HIV as an issue about 20 years ago. An Australian man had a mutated version of the virus which makes no one sick and infers immunity from the virulent varieties.
This would have save countless lives, trillions of dollars and this ridiculous prejudice. The ABC did a program on it and called it billion dollar blood. Why was it not used? I would guess that there was no money for pharmaceutical companies if it were. What a wonderful world (if you own a mega rich company that is).Agree (0) Alert moderator
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PaulB:
23 Sep 2008 9:53:11am
Quite a bit of research is being done in Africa at the moment with career prostitutes who demostrate immunity to AIDS.Agree (0) Alert moderator
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Steve:
23 Sep 2008 1:43:24pm
There are more of these people around, and research is being done. Doesn't mean it's an instant cure. Think, read, then write.
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twobob:
23 Sep 2008 3:29:18pm
About 20 years ago it could have been used as an immunisation. Thats a lot of time to think, read, write, test, implement, measure and save lives.
Think read and then save lives..........?Agree (0) Alert moderator
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Greg h:
23 Sep 2008 5:20:47pm
There is some naive view, that medical science has a magic bullet to fix many of the illness out there.
The fact is even for a simple flu, there is no 100% effective medicine.
For sexual diseases like syphilis etc there is no 100% treatment and the virus stays in the victim's body.
It is clear that humans need to take more responsibilty for their personal hygiene , sexuality habits etc rather than expecting medical science to bail them out.Agree (0) Alert moderator
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skeptical:
23 Sep 2008 9:22:12am
"We know that with appropriate safe-sex measures in place, the risk of transmission is negligible."
ie Not zero.
Whilst I am not fully aware of the judges reasoning and background to the case, there is a similarity with medicine. ie failure to warn of consequence of procedure, particularly if that consequence could be harmful.
I understand the person concerned engaged professional sexual activity knowing of his HIV status. There was no warning to clients.
I'd say the judge is being consistent. But I remain open if the circumstances of the case dictated otherwise.Agree (0) Alert moderator
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Jeremy:
23 Sep 2008 12:59:50pm
The chances of you being struck by lightning are also "negligible" "ie Not zero." What precautions are you taking to prevent death from lightning strike?
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Skeptical:
23 Sep 2008 1:47:39pm
OK - its a balance of risk - but to me the decision is one that is designed to protect the general public.
Doctors who are infective are obligated to report this to each state medical board. Their medical practice is restricted to ensure public safety - so they do not infect patients (intentionally, or unintentionally).
People with other medical conditions are also restricted in their behaviour to protect the public. eg people with uncontrolled epilepsy cannot drive, people cannot drive buses unless their health is of high standard. people with a mental health history cannot own a gun. etc etc
The basic principle seems that the law limits the activities of certain people based on their medical condition. The purpose of this is to protect the public, some of whom are ignorant of the risks.
The author seems to have ignored this argument in his article.Agree (0) Alert moderator
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Skeptical:
23 Sep 2008 2:01:13pm
PS. - we are all required by Law (building codes) to have lightning conductors on the roof.
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Brian:
24 Sep 2008 2:53:09am
We are taught in school that Condoms do not provide 100% protection from Aids, or pregnancy for that matter.
To continue to work as a sex worker after finding out you are infected is the issue. I would have thought that all sex workers should know that condoms are not 100% effective.
While the chance of infection is very small, it isn't zero.Agree (0) Alert moderator
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Julie:
24 Sep 2008 11:02:41am
Hello Brian, yes condoms in inexperienced hands occasionally do fail but I'd rather take my chances using condoms and lube than not. As for sex workers they are the most experienced safe sex advocates the world over and there has been no occupational transmission of HIV in the Australian sex industry work places due largely to this skill. You also miss the point that sex work is not all about penatrative sex.
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Julie:
24 Sep 2008 10:57:34am
Bring back the original prevention message which worked to kerb HIV transmission at the beginning of the HIV epidemic in Australia. The simple message was to treat all of your sexual partners as if they may have HIV - don't wait for someone to tell you their serostatus one way of the other. We should all be responsible for ourselves and should know that unprotected sex brings risks of many infections not just HIV.
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dragon:
23 Sep 2008 9:22:25am
This is a great example for the global legalisation of the sex industry. Licence it's operators/workers and once the person has been diagnosed with HIV, their licence for operation should be rescinded ...... Period ! (There'll be plenty to fill the void).
HIV is too high a risk even if 'precautions' are used. I feel compassion for the people who have contracted this disease but measures have to be taken to prevent it spreading to the general population.
Getting them out of the 'loop' is a good start !
Unfortunately what they do in their private lives is another issue which will be near impossible to control. Then the case becomes a matter of trust with their partners, and their partners should be fully informed, otherwise a criminal case is warranted for the malicious spread of a 'death' sentence !Agree (0) Alert moderator
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GiGi:
23 Sep 2008 4:08:50pm
They may be deregistered, but what's to stop them from working in the black market?
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Spectre:
24 Sep 2008 8:52:13am
I think dragon hit on a good idea. By offering licensed proffessional sex workers, you know their health is checked for your safety. It will also bring a greater knowledge base of the disease to the public, more informed choices and the like. Sure, de-licensed sex workers could continue working in the black market. However, thats the choice of the client, given that there would be a good reason for not having a license.
This might also mean sex workers would be more careful... should they contract HIV or AIDS, they might find their work drying up.
Of course this then leads to the client being responsible for his own health, should he knowingly infect a licensed proffessional sex worker, he could be up for quite a bit of compensation payout...Agree (1) Alert moderator
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Julie:
24 Sep 2008 11:06:14am
I presume you are a sexually active human being, when was the last time you had a general STI check up. Sex workers have regular checkups at their own volition because they are sexually responsible human beings and care about themselves and not because some regulatory authority demands it.
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Somewhat Perplexed:
23 Sep 2008 9:41:40am
Magistrate John Burns turned back the clock on many years of experience and taxpayer-funded work in HIV prevention and management and used an antiquated Australian law from a time when an HIV diagnosis was certain death, to criminalise, stigmatise and discriminate against current sex workers living with HIV.
I do not think he did. I think think he interpreted the law that is available to him.
I think your article should be pointing the finger at the dimwit who has not removed the law from the books.Agree (1) Alert moderator
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Stop_the_madness:
23 Sep 2008 10:15:19am
The issue in this case was not that the man was HIV positive and working as a sex worker - it is that he was HIV positive and working as a sex worker WITHOUT telling his clients.
This sex worker's right to privacy does not override his clients' right to be apprised of all the facts concerning the potential risk to themselves should they choose to use his services.Agree (0) Alert moderator
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cpk:
23 Sep 2008 11:46:03am
anyone who goes to a sex worker should expect to get some kind of disease. whether it be HIV/AIDS or ghonoreah (excuse the spelling).
sex workers, should be made to register there line of work and submit to OHSW guidlines, not only for there own protection, but also for the safety of there clients. walk into your nearest woolies and slip on a puddle of water and you can sue woolies for negilgence, but can people sue sex workers for damages???
sex workers should also conform to tax laws, and if the dont register as a sex worker, then have jail terms applied for opperating a business without a licenceAgree (0) Alert moderator
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seajae:
23 Sep 2008 10:26:45am
If the sex worker had informed his clients of his condition then he would not be in this predicament. Of course he should be charged, anyone that carries HIV should give their sex partners the courtesy of refusing to take the chance of catching it, there is no defence on this at all. It should be compulsory for sex workers to be tested regularly to ensure this does not happen again, if they have HIV then they should be stopped. This is not about awareness, it is about the right of someone to know of the risk they are taking, if they still want to go ahead then it is their own problem if they do catch it. There is no excuse for not letting partners know, embarrasment & not being able to sell yourself is no excuse, if you have HIV you should not be still sexually active full stop, that is unless there are 2 consenting adults involved.
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stargirl:
23 Sep 2008 1:55:54pm
I don't understand why it is being assumed that condom sex is safe sex. It could reasonably be called "safer sex" but it's not completely safe. The 2001 Cochrane review of the effectiveness of condoms in preventing HIV transmission concluded that consistent use of condoms results in only an 80% reduction in HIV incidence.
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Green:
23 Sep 2008 4:11:06pm
I think many people who've relied on condoms for contraception could attest to the fact that, every so often, they do fail. Definitely not 100% safe sex.
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bemused:
23 Sep 2008 4:35:51pm
And they aren't 100% effective as contraception either. It's amazing how many people don't appreciate that.
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Pyce:
24 Sep 2008 8:29:32am
I'm pretty sure that of the condom 'failures' the vast majory are caused by incorrect use.
Also keep in mind that the 80% quoted by stargirl is a misleading figure. At a quick read it reads as though 1 in 5 times you use a condom it will fail. What it's saying is that people who engage in regular sex using condoms are 80% less likely to contract HIV ie 20% are likely to contract over a lifetime of sex.
That means if a sex worker has sex 200 times in a year for 20 years (I'm pulling those numbers from thin air - I have no idea what realistic numbers are) then they have sex 4000 times and only need the condom to fail one of those times to be at risk of contracting.
The risk is genuine and needs to be made public but using statistics without explaining what they actually mean can be misleading and hinder education.Agree (0) Alert moderator
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stargirl:
24 Sep 2008 10:44:33am
I guess the Cochrane review conclusions were 'misleading', by your calculations. Yes of course people are 80% less likely to contract HIV. These studies refer to consistent use but can't measure 'correct' use. Bear in mind, however, that this is the real world, not a clinic. If that's how the real world works, you'd better get used to it instead of arguing "well yes, condom users might still be 20% likely to get HIV but that's their own silly fault for possibly using a condom incorrectly."
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GiGi:
23 Sep 2008 4:22:59pm
I don't really agree with the idea that HIV is here to stay. It is a preventable disease. The idea of having public policy that includes legislation to support this goal does actually seem reasonable, even if a little unlibertarian. There are so many diseases we have been able to eliminate over the course of history and there is no reason why this is any different.
Also the idea of having sex workers with HIV and still being allowed to work is a little scary. Sex workers in Asia with HIV is one of the major facilitators for the increase in incidences of HIV in Australia, we hardly want to bring the problem on shore as well without protecting clients of sex workers. Criminalisation just means that people are compelled to stop working in the industry if they test positive. If someone is worried about not being able to work because they are HIV positive, they won't be tested regardless of the law. However having laws in place does send the message that we are serious about public health.Agree (0) Alert moderator
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MO:
24 Sep 2008 8:35:27am
HIV is a retro virus using reverse transcriptase pathways to enter cells. Retro viruses have been around for longer than human beings and can mutate seemingly at will.
I don't think your wish for eradication is going to happen.
The virus may mutate to something more benign and seemingly disappear, or to something more aggressive altogether.
Its like Ebola - here today with massive casualties and gone (where?) tommorrow, only to re-emerge unpredicatably again (when?).
Man and medical science has little power here. We are definitively part of the ecosystem and the ecosystem cares not for our existence or demise.Agree (0) Alert moderator
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yabbie:
24 Sep 2008 9:49:38am
Spot on MO. Even though human's have greater evolutionary capacity than any other vertebrate on the planet, our capacity to adapt or mutate is feeble in comparison to viruses.
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bitrich:
23 Sep 2008 6:36:05pm
People that knowingly infect others should be stigmatised.
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mikej:
23 Sep 2008 8:56:48pm
now let me get this straight. this person engaged in sexual activity knowing he was hiv positive without informing his partner. knowing that hiv CAN lead to aids and that aids attacks the t cells of someones immune system i'd say he was either endangering someones health, wanton nglect, criminal negligence, and so on. 2 months?? if his "clients"
;read victims, progress to +hiv can they sue for damages?? and if they progress to aids and die can they sue for wrongfull death??
you can do it for traffic offences. why not sex??
2 months??????Agree (0) Alert moderator
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Spectre:
24 Sep 2008 9:00:26am
True enough huh. by not informing the partner, he has given over a slow death sentance. Given that the disease cannot be cured, and he knowingly engaged in an act which could pass it on, surely he can be done for man-slaughter? Or as it is a slow, and sometimes very painful death, that has no doubt resulted in a complete lifestyle change for the partner, why not be charged with acts of cruelty or torture or the like? 2 months is nothing in exchange for this persons life and lifestyle.
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abbey:
23 Sep 2008 9:46:34pm
kids,
i think the simple fact that NO sex worker OR CLIENT has ever (thats right NOT EVER) contracted HIV during a commercial transaction in australia...ever.. should possibly count for something....
whats more... we have better (yes BETTER) sexual health than the general population (yes thats you)
now im a sex worker and i want you to think about this....what ever your uneducated arguments say, surely even you are able to understand, that given this recent case.... im NEVER GONNA GET TESTED AGAIN
you feeling any safer now??
NEWS FLASH......... ur taking a risk when you have sex.... when u have sex with me, the girl from the pub, ur wife, the guy from the beat, ur bf/gf..... anyone!!!
want to reduce that risk? see a sex worker and use condoms......its proven.... again and again....
now, why dont you all get off the top of you high horse and start looking after your own health.... and if you need some advice as to how to do this.... how bout visit your local hooker for up to date and proffesional safe sex information!!!
and also, since it has been proven again and again in this country that im more likely to catch something from you than you are from me, please make sure you get your STI/HIV clearence certificate before you come visit me!!!!Agree (0) Alert moderator
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Kat:
24 Sep 2008 9:04:02am
Abbey I just had to write to say thanks for some clear thinking on this issue. There is a lot of emotional/knee jerk stuff being said here and not a lot of it is as straightforward as your input.
Thanks again, be safe.Agree (0) Alert moderator
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Green:
24 Sep 2008 10:17:24am
I don't know how you can categorically state that "no sex worker or client has ever contracted HIV during a commercial transaction in Australia" while maintaining a straight face. Such a statement is not only unprovable, but also highly unlikely to be true.
I think it is likely that there have been a few instances of clients or sex workers in Australia being infected during paid sex, but that these instances have not been reported to health authorities.Agree (0) Alert moderator
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Brian:
24 Sep 2008 2:45:57am
Condoms do not offer 100% protection from HIV or AIDS.
(Note that I do agree that they should be used at all times outside of permanent relationships such a marriage).
It is for this reason that anyone in the sex industry should be regularly screended for HIV and AIDS. Simply because they are in a high risk category.
Doing so, in combination with other protection, will greatly reduce the chance of transmission to clients.
If a sex worker has the disease than they have a moral and legal obligation to stop working in the industry. Simply using protection will not protect clients.
Only if regular screening, and protection, can be shown to have been performed should the law be more lenient.
If transmission were to happen between checks that I'm afraid that that is a risk you take.
It would be interesting to know what help is given to sex workers who do contract HIV or AIDS. Eg so they don't have to keep working in the industry.
If they know that there is help for them if they do test positive then that will encourage regular testing.Agree (0) Alert moderator
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Dave:
24 Sep 2008 3:36:43am
"Magistrate's ruling undermines public health"
Does it? In what way, pray tell? None that I can see.
"Magistrate John Burns turned back the clock on many years of experience and taxpayer-funded work in HIV prevention and management and used an antiquated Australian law from a time when an HIV diagnosis was certain death, to criminalise, stigmatise and discriminate against current sex workers living with HIV".
No he didn't. He rightly condemned a man who knowingly had sex with strangers without informing them that he was HIV positive.
If anything, the title of this article should read "Magistrate's ruling safeguards public health".
There is no law against being HIV positive, and the magistrate's ruling does not equate to one.
"I know people are sick to death of hearing the safe sex message, but the alternatives are far scarier, and that would be having untested, undiagnosed and unchecked HIV infections running rampant in people who are too scared to get tested and claim to others that they have never tested positive to HIV".
Why is that the alternative? No reason that I can see. If people are afraid of being tested, it probably means they're carrying a disease. Great! We just found an easy way to tell if people are carriers.
But wait - why would they refuse to let others know that they have a disease if there is no chance of anyone ever catching it? The answer is simple: because they know perfectly well that they do not intend to practice safe sex consistently. Oops, there goes the "unfair discrimination/criminalisation" argument up in smoke.
They've made their beds; let them lie there. Alone, if necessary.Agree (1) Alert moderator
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lydia:
24 Sep 2008 11:02:40am
There is legal obligation to advise a person you are having sex with that they are HIV positive.
Abbey was right there has never been a recorded case of HIV transmission in a sex work setting in a Australia. It is well documented.
The hysteria in the comments on this page show clearly that HIV positive people and sex workers experience high levels of discrimination and that it is not based on evidence but stereotypes, misinformation and prejudism.Agree (0) Alert moderator
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monica:
24 Sep 2008 7:48:13am
Even with protected sex, you can bet your bottom dollar that those who have had sex with the said person lived nervously for a few months and were never sure that they had not been infected. Take risks people, because over population is a biggest risk.
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psquared:
24 Sep 2008 10:35:07am
I wonder if this conversation would take a different course if sex was taken from the equation. By that I mean if the issue surrounded someone knowingly exposing others to a transmittable disease by some other means, would the public, the judiciary react differently? Would we, as individuals, feel more or less outraged by this behaviour?
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HardCalibre:
24 Sep 2008 10:35:17am
I am a openly gay man in a loving civil union. Frankly I dont think they gave this chap long enough inside. There is no excuse for not telling somone you are HIV possative prior to any sexual interaction. NO EXCUSE! Condoms break, things go wrong, if your HIV possative then you have a responsability to ensure your potential partner is fulling informed and can make an informed descision regarding wether they wish to risk contracting a serious illness. Anything less is criminal negligence and deserves serious punishment.
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