Overview
South Australia does not have an HIV-specific law but the general criminal law has been used to prosecute HIV exposure and alleged transmission under section 29(1), which criminalises undertaking an act or omission knowing that doing so will endanger the life of another person, and being reckless about whether the person’s life is endangered or intending to endanger the person’s life.
Of the four known HIV criminalisation cases, three related to alleged exposure (only) without transmission. In the first case (2006), the accused unsuccessfully ran a defence argument that there was no scientific evidence that HIV causes AIDS. The third case (2009) attracted substantial media scrutiny after it was alleged the health department had not acted quickly enough to address the accused’s behaviours which were deemed to have put others at risk of HIV.
South Australia’s Public Health Act also has provisions relating to HIV. It states that a person who has a controlled notifiable condition (including HIV) has a responsibility to take reasonable steps or precautions to avoid placing others at risk. It also states that a person must not, in a way that is reasonably practical, put themselves at risk of contracting a controlled notifiable condition (including HIV).
The South Australian Code for the case management of behaviours that present a risk of HIV Infection aims “to operate in a non-judgemental way to achieve safe behaviours through education and voluntary co-operation with flexible strategies and supports”. Interventions range from supportive interventions to, if a person fails to follow directions, detention. The Code aligns with the National Guidelines for Managing HIV Transmission Risk Behaviours which state that the least coercive actions should be used first, aiming to place the person under the least restriction possible, and to de-escalate or discharge the person from management.
Laws
Criminal Law Consolidation Act 1935
Section 29 Acts endangering life or creating risk of serious harm
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to endanger the life of another; and
(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 18 years.
(2) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause serious harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 12 years.
(3) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 7 years;
(c) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years.
Public Health Act 2011
Section 14 Specific principles
(3) A person who has a controlled notifiable condition that is capable of being transmitted to 1 or more other persons has a responsibility to take reasonable steps or precautions to avoid placing others at risk on account of the controlled notifiable condition.
(4) A person must not, insofar as is reasonably practicable, act in a manner that will place himself or herself at risk of contracting a controlled notifiable condition that is capable of being transmitted.
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.