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HIV and the Law in New Zealand from a Public Health Perspective Public Health Association Conference 3 September 2009

Kate Bukowski NZAF Policy Analyst


Overview • History of New Zealand HIV prosecutions • People living with HIV’s rights and legal obligations • Criminal law and public health harm reduction • Public Health Bill • How to work with the rare cases of people with HIV who place others at risk


Legislation •

Crimes Act (1961) • s156: Duty of persons in charge of dangerous things • s145: Wounding with intent • s188(2): Criminal nuisance

Health Act (1956)


HIV Criminal Prosecutions Cases that will be discussed in this presentation: • R v Mwai (1995) • Police v Truscott (1999) • Police v Dalley (2005)


Public Health and Criminal Law • R v Dalley (2005) – a significant alignment of criminal law with Public Health principles: Condom use not disclosure of HIV status were deemed reasonable to discharge duty of care.


Prosecutions in New Zealand CASE

s188(2)

s145

SEXUAL ACTIVITY

DISCLOSURE

CONDOM

CONVICTION

1995

High Risk

NO

NO

YES

1998

High Risk

NO

NO

YES

1999

High Risk

NO

NO

YES

1999

High Risk

NO

NO

YES

1999

High Risk

NO

NO

YES

2003

High Risk

NO

NO

YES

Dalley (2004)

Low Risk

NO

YES

NO

New Zealand AIDS Foundation Te Tūāpapa Mate Āraikore O Aotearoa


Lessons learnt from R v Dalley A successful outcome because: 

Good relationship with Police first

Provide the same information on the science of HIV risk to prosecution and defense

Ensure accused party is supported


NZAF’s “HIV transmission and the law”


Public Health Bill •

NZAF supports HIV becoming notifiable.  Only if an anonymous code.  In order to ‘future proof’ the current reporting system.  Various improvements and clarity for Medical Officers of Health.


The Discussion Document on Proposed Guidelines NZAF is chairing the National HIV and AIDS Forum working group on the discussion document “Guidelines for the Management of People with HIV who Place Others at Risk”.


Our mission/koromakinga Ki te arai i te tuku o te HIV me te whakapai ake i hauora me te oranga o nga tangata e ora ana me te HIV me te AIDS. To prevent the transmission of HIV and to support people affected by HIV and AIDS to maximise their health and wellbeing.


References 1. Cameron, S., Power, L., Le Mesurier, R., & Azad, Y. (2009) The Criminalisation of HIV Transmission: International Unpublished chapter.

2. Goldstein, D., Patton, C., & Worth, H (2005) “Reckless Vectors: the infecting ‘other’ in HIV/AIDS law”. Sexuality Research and Social Policy: Journal of NSRC 2:2 (1-2) 3. MacDonald, A., & Worth, H. (2005) “Mad, and Bad: HIV Infection, Mental Illness, Intellectual Disability, and the Law”. Sexuality Research and Social Policy: Journal of NSRC 2:2 (51-62) 4. Stein, T.S. (2005) “Editorial. Criminalization, Cultural Studies, and Other New Territory for SRSP”. Sexuality Research and Social Policy: Journal of NSRC 2:2 (1-2) 5. UNAIDS (1996) HIV and Human Rights International GuidelinesDownloaded on 18 August 2009 from: http://data.unaids.org/publications/irc-pub02/jc520-humanrights_en.pdf 6. WHO (1986) Ottawa Charter 7. WHO (2006) WHO Technical Consultation in collaboration with the European AIDS Treatment Group and AIDS Action Europe on the criminalization of HIV and other sexually transmitted infections. Copenhagen 16 October 2006


HIV disclosure and public health