Overview
Papua New Guinea’s HIV/AIDS Management & Prevention Act 2003 notes that the intentional transmission or attempted transmission of HIV to another should be considered assault or attempted assault, occasioning body harm under the Criminal Code Act. Where death has occurred, such actions are to be considered unlawful killing. The HIV/AIDS Management & Prevention Act 2003 also states that where a person’s behaviour poses a real danger of transmission to others, and they have been counselled without success on appropriate behaviour, the director may issue a written notice. Failure to comply is unlawful, with a penalty up to K5,000 and/or imprisonment.
There has been only one reported case of criminal investigation of HIV transmission in Papua New Guinea to date, and the case does not appear to have gone to trial. A 2006 press report described the investigation of a member of parliament, with suggestions that charges could be laid under the section 23 of the HIV/AIDS Management and Protection Act of 2003 relating to the intentional transmission of HIV or “reckless behaviour causing risk of infection”. The charges related to two women who later died, although there are no other details.
Laws
Criminal Code Act 1974
Section 298 Unlawful homicide A person who unlawfully kills another is guilty of the criminal of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case.
Section 340 A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour
HIV/AIDS Management & Prevention Act 2003
Section 23 Intentional Transmission The intentional transmission or attempted transmission of HIV to another is
- assault or attempted assault, occasioning body harm within the meaning of Section 340 of the Criminal Code Act (Ch 262)
- where death has occurred – an act of unlawful killing within the meaning of Section 298 of the Criminal Code Act
Section 24 – Reasonable Care A person who is, and is aware of being infected with HIV shall –
- Take all reasonable measures and precautions to prevent the transmission of HIV to others, including the use of a condom or other effective means of protection from infection during sexual intercourse; and
- Inform any intended sexual partner or any person with whom a skin penetrative instrument is to be shared, in advance of the sexual intercourse or sharing of the skin penetrative instrument, that he is infected with HIV
And the taking of those measures and precautions and the giving of that information shall constitute the taking of reasonable care.
Section 25 Reckless behaviour causing risk of infection Where the director believes, on reasonable grounds, that a person-
- Is and is aware of being infected with HIC; and
- Has behaved in such a way as to expose others to a significant risk of infection; and
- Is likely to continue that behaviour in future; and
- Has been counselled without success in achieving appropriate behaviour change; and
- Presents a real danger in infection to others
The director may issue a written notice to the person.
Section 25(4) Failure to comply with a notice under subsection (2) is unlawful.
Section 27 – Unlawful Act
- An unlawful act under this Act
(e) is an offence to which the penalty is –
(i) in the case of a natural person – a fine not exceeding K5,000 or imprisonment for a term not exceeding three years, or both.
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.
