'I had a one-night stand and followed the law; it ruined my life.' Requirements to take reasonable precautions not an improvement on laws criminalising HIV non-disclosure: a case study

BACKGROUND: In October 2018, New South Wales (NSW) became the last State in Australia to remove requirements for people living with HIV (PLHIV) to disclose their status prior to engaging in sexual intercourse. While other Australian jurisdictions replaced these requirements with statements of principles regarding mutual obligations, NSW instead legislated section 79 of thePublic Health Act 2010 (NSW) (s79) which requires a person with HIV to take reasonable precautions to prevent transmission to another with a maximum penalty of 6 months imprisonment and/or up to an $11,000 fine for contravention. In practicality, prosecutions under s79 have implications far beyond criminal penalties.
DESCRIPTION: The HIV/AIDS Legal Centre NSW (HALC) is aware of just one prosecution under since s79 to date however the consequences for the defendant in that case, despite them being found not guilty, were rife.
First, the defendant was held in custody on remand for weeks as the Magistrate considered them a risk to public safety. Second, while the Magistrate cleared the Court (proceedings under s79 must be conducted in closed courts), they omitted to order reporters to remove television cameras from the Court resulting in the mainstream media reporting on the case, including publishing the defendant's name and HIV status. Following the publication, the defendant faced ostracisation and discrimination from their local community.
LESSONS LEARNED: Even though the Magistrate in this case found that the prosecution had not satisfied their burden of proof and that the defendant was not guilty, by that stage, it was too late to mitigate the impact on the defendant from the public disclosure of his HIV status. Lawyers, the judiciary and prosecutors must be trained not only on the current science on HIV treatment and prevention but also to ensure that non-publication orders are sought early in proceedings to prevent any non-consensual disclosure.
CONCLUSIONS: HALC continually advocates for s79 to be repealed due to its detrimental impact on HIV testing, treatment and prevention and provides ongoing representation for PLHIV facing criminal charges to counter the negative impacts of criminlisation and to ensure that the privacy of PLHIV can be protected at all stages of the process.

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