Two very different criminal HIV transmission cases currently taking place in the Australian cities of Melbourne and Adelaide are raising difficult questions regarding the ramifications of the criminalisation of HIV transmission that parallel ongoing consultations from the Crown Prosecution Service and the Department of Health. These include issues of confidentiality; the role of the criminal law in protecting public health; and whether the criminal justice system has an appropriate understanding of the complex science of HIV, and HIV transmission.
In Melbourne, the police are considering setting up a task force to investigate several gay men for “deliberately spreading” HIV after inadvertently obtaining their confidential medical files whilst executing a warrant to investigate a man who is currently standing trial for HIV exposure and transmission.
This is creating much “unease” amongst Melbourne's gay community, according to the gay and lesbian community newspaper Melbourne Star, and raises many questions about confidentiality, and respective roles of law enforcement and healthcare professionals in “protecting” public health.
In Adelaide, HIV itself is on trial, after a South Australian Supreme Court judge set aside two weeks to allow 'AIDS denialist' arguments to be used by the defence team who are trying to quash a man's previous conviction for HIV exposure and transmission.
The resulting publicity for the so-called 'Perth Group' – who have used the witness stand to attack what they called the "HIV myth" – is leading to the wider dissemination of misinformation which one prominent expert termed “insane”.
Melbourne: confidentiality vs. public health
Late last week, the Melbourne Star reported that police in Australia's second largest city are investigating “four or five people” suspected of “deliberately spreading HIV” throughout the gay community.
The story hints at tensions between the police and the public health authority - the Department of Human Services (DHS) - regarding their respective roles in protecting the city's public health.
It also claims that the DHS “inadvertently” gave the police access to the confidential medical records of seventeen men, whilst they were investigating the case of a 48-year-old man currently standing trial for “deliberately spreading HIV”.
It is unclear, however, from media reports whether the man on trial is being charged with reckless, or deliberate, HIV exposure or transmission, in addition to rape and child pornography charges. Melbourne's daily newspaper, The Age, reports that the man “is accused of trying to infect 16 men with [HIV] by having unprotected sex with them between October 2000 and March 2005. Two of the alleged victims have since tested HIV-positive.”
According to the Melbourne Star, the DHS keeps files of people they believe to be a risk to public health, including HIV-positive individuals who have reported to healthcare workers that they have difficulty consistently practising safer sex. The DHS appears to have “considerable powers to manage the behaviour” of these individuals. This ranges from counselling to the enforcement of “appropriate behaviour” by the Chief Health Officer who “can order an increasingly strict regime of monitoring and control, ranging from curfews to full-time detention.”
According to the The Age it is alleged that the man standing trial “was on an order from DHS not to engage in unprotected sex or attend "beats" - public places where gay men gather to have sex - because of his HIV status when he had sex with two of his alleged victims.”
However, when police were given access to this man's files, they found a further “17 cases [which] gave them cause for serious concern.”
“The confidential files related to investigation and monitoring of individuals whose circumstances or behaviour had the potential to present a risk to public health,” DHS spokesperson, Bram Alexander told Melbourne Star. “None of these files is presently active, and the Department is satisfied that each matter was appropriately dealt with under the Health Act. None of these cases is considered to be a public health risk.”
Nevertheless, the paper reports that police “still felt that eleven of the cases required police investigation [and that the police] were worried that the situation might require the establishment of a large and expensive task force”. The report adds that police are “actively investigating four or five cases which they describe as being 'of serious concern' [because] their duty of care to the public compelled them to act without further delay.”
Adelaide: HIV on trial
Meanwhile, national newspaper The Australian, reports that John Sulan, a South Australian Supreme Court judge, has set aside two weeks to allow arguments to be heard in the appeal court from so-called 'experts' who believe that HIV is not the cause of AIDS.
Although the paper adds that prosecutors objected to these witnesses' status as "experts, Justice Sulan said he would address the objection after their evidence was heard.”
Earlier this year, the paper reports, a man was convicted “of endangering the lives of three women and faces 15 years in prison. One of the women now has HIV.”
During the man's appeal hearing last week, his lawyer argued that his “client's conviction cannot stand if HIV is based on flimsy science” and called several “expert witnesses” who are well-known 'AIDS denialists'.
The main witness, Elena Papadopulos-Eleopulos - a medical engineer who co-founded the so-called 'Perth Group' - told the court “that HIV was not a retrovirus and could not be transmitted by sexual intercourse.”
However, one of the five expert witnesses for the prosecution, Professor Andrew Grulich from the National Centre in HIV Epidemiology and Clinical Research, described the group's claims as "insane. They have a very long and convoluted argument that has been comprehensively disproved many times," he told the court.
"What they say is outrageous and quite dangerous,” Professor Grulich added, “because it encourages people to not be concerned about transmission."
Community unease
However, Melbourne Star also reports that the gay “community [is] feeling uneasy” about these police investigations, and quotes Mike Kennedy of the Victorian Aids Council who warns that “the danger in using criminal sanctions is that people could become reluctant to disclose their behaviour [to healthcare workers] and co-operate.”
Greg Iverson of People Living with HIV/AIDS added that these issues of confidentiality could push “the openness around HIV with doctors and counsellors back underground, which won't help the management of the epidemic,” and noted that “there's a danger people could tar us all with the same brush, thinking we're all irresponsible like this, and we're not.”
UK consultations: deadlines approach
The deadline for the Department of Health's policy consultation on the confidentiality of HIV and sexual health records and the circumstances in which disclosure without a patient's consent may be possible, is today (October 31st).
The deadline for the Crown Prosecution Service (CPS) public consultation on their policy for prosecuting cases involving the sexual transmission of infections which cause grievous bodily harm is this Friday (November 3rd).