Law & Crime

International AIDS Conference delegates were surprised by a Victorian government announcement to amend a law targeting murder by infection. By Martin McKenzie-Murray.

How Section 19A stigmatises HIV/AIDS in murder law

There are reminders everywhere. The flags at Victoria’s Parliament House and the Old Treasury Building are at half-mast, slumped forlornly in the absence of breeze. At the Melbourne Convention and Exhibition Centre, the official venue for the 20th International AIDS Conference, flowers have been left at a makeshift site of remembrance for the six delegates killed aboard Malaysia Airlines flight MH17. Those delegates included the former president of the International AIDS Society, Joep Lange.

At the entrance to the centre, on the Yarra River, a man holds a sign above his head: “UN ICAO: Criminals.” The man is loudly imploring the stream of delegates to consider the International Civil Aviation Organisation the real culprits behind MH17’s fate. “International travellers,” he yells, “this isn’t just about Russia!” Two bemused police officers eye him. It’s cold this morning, and he wears a puffy thermal layer. There’s no shortage of people for him to beseech: some 14,000 delegates from 200 countries have arrived here.

At a pre-conference seminar on Sunday called Beyond Blame: Challenging HIV Criminalisation fewer than 100 people gathered in a small conference room in the city. Julian Hows from GNP+ (Global Network of People Living with HIV) introduced himself as the chairman of the discussions. Dapper and assured, he looked and sounded like Stephen Fry, wearing a bright pink suit that matched the highlights in his hair. But his mood was sombre. “I won’t say much about the plane crash – we will have an official mourning event this evening at the conference’s launch. I know we have lost some very good people. But it was 15 years ago that we lost our friend Jonathan Mann in a plane crash also.”

Mann was a former administrator of the World Health Organisation – a position from which he resigned in protest at what he considered the UN’s slovenly or indifferent approach to AIDS. On September 2, 1998, Mann and his wife – an AIDS researcher – were among the 229 killed when Swissair Flight 111 from New York City crashed into the Atlantic Ocean.

“But we carry on,” Hows said. “And I should put these deaths in context: 8000 die every day of AIDS because they do not have access to the proper drugs.”

His message is telling, not just in its affirmation of the need to continue their work despite the sudden calamity in Europe, but that the battle against HIV is no longer fought in the context of the world teetering on the edge of an uncontrollable plague of devastation. That was the fear felt by many in the late ’80s, captured memorably by the Grim Reaper commercial that ran on Australian TV in 1987. Today, though, antiretroviral drugs mean those living with HIV in developed countries have the same life expectancy as those not infected. The theme of this year’s conference is Stepping Up the Pace – meaning we now know what to do regarding prevention and treatment, but aren’t doing it enough.

Michael Kirby, former High Court justice, gave the seminar’s keynote address, echoing Hows’ message of resilience. He had been in Amsterdam only three days before MH17 left that city. “There’s a big cloud over this conference,” he said, pausing to fight the tears forming in his eyes. “But I know we will go on despite it.”

It will be difficult. Some sessions have empty chairs where the dead would have sat.

1 . Health minister's bombshell

Before Kirby spoke at the Beyond Blame conference, Victorian health minister David Davis addressed the small audience. He, too, was sombre and earnest, but he was alone in knowing the surprise news he was about to share.

He opened with gentle, obligatory reference to MH17. And then dropped his bombshell: “And so I can announce this government’s intention to amend section 19A of the criminal code.”

There were audible gasps. Then a man stood and applauded. Another person joined him. Then another. Perhaps 10 people soon stood in ovation.

“I had no idea that was coming,” Kirby later said. But afterwards, when it was time for lunch and the minister had left, enthusiasm seemed awkwardly suspended between hope and cynicism. “They’re weasel words,” one activist told me. Another said: “We’re going to have to line our ducks up on this regarding a comment. We need some time to think about it.” Regardless, it was a significant day, even if some were still deliberating what exactly that significance was. 

2 . How 19A singles out HIV

To understand it, it is well to recall that in the early ’90s we were terrified of “syringe bandits” – fiends wielding blood infected with HIV or hepatitis, say, to better plunder our banks and petrol stations. While general apprehension about AIDS had declined from its apex in the late ’80s, the syringe bandit was a prominent bogyman. For some it seemed more horrific than a gun – with the prick of a needle you were condemned to a painful death. The thought that blood could be weaponised, could be used to fatally contaminate your own, was chilling.

Victorians demanded a legislative response. This was a new type of murder – an agonisingly delayed one – and the law didn’t reflect that. There was recourse to other, minor infringements, but that was all.

The then Victorian attorney-general Jan Wade stood in parliament to argue for the passage of a new bill on April 28, 1993. “The purpose of the bill is to respond to escalating community concern about the use of hypodermic syringes filled with blood as weapons in cases of robberies and assault. At present, the intentional transmission of the HIV virus by this method is not adequately addressed by the criminal law. Modern medical science tells us that injecting another with HIV infected blood will almost inevitably cause the death of the victim. It also tells us that there will be in almost all cases a delay of some years before the victim dies of AIDS or an AIDS-related illness. The intentional infecting in that way could result in a guilty verdict to a charge of murder. The fact that some years will pass before the victim will die means it is more likely that the offender will be charged with attempted murder, and that is totally unsatisfactory.”

The law in question was section 19A of the criminal code, which reads: 1) A person who, without lawful excuse, intentionally causes another person to be infected with a very serious disease is guilty of an indictable offence (punishable by up to 25 years’ imprisonment). 2) In subsection (1), “very serious disease” means HIV.

3 . The argument for repeal

Hence HIV was exclusively specified, and it remains the only law in the country that does so. It has angered activists for some time now – they argue it is discriminatory, that it stigmatises the virus, and it is outdated in assuming being HIV positive is a death sentence. They even say it discourages people from being tested, in order to escape the mens rea test of criminal culpability – if they don’t know their status they cannot be found guilty of intent.

They have no argument with the repugnant act of wilful transmission of HIV being criminalised, but importantly argue that other existing laws provide sufficient cover.

“It goes against UN guidance, which says that you should use the general law to respond to the harm in a case of deliberate transmission,” Daniel Reeders, of the Australian Research Centre in Sex, Health and Society, tells me. “So Victoria already has laws that would cover that, whether it be the reckless or malicious injury provisions of the crimes act.”

Reeders explains that the historic context of the law is no longer relevant. “It was to get around some of the restrictions that then existed about when the death had to happen [for a murder]. For instance, the year and a day rule where if you injured someone and they died two years later you couldn’t be held accountable for murder. That’s now completely irrelevant. Someone diagnosed today with HIV has the same life expectancy as someone without HIV.”

Only once has section 19A been invoked, in the notorious case of Michael Neal in 2003 (another man had 19A charges withdrawn in 1997 after a magistrate could not determine his intent). Interestingly, neither case was an act of syringe banditry – the law has never been used on armed robbers as originally conceived. Neal, then 48, was arrested on multiple charges, including deliberately trying to infect men with HIV. Other charges included possession of child pornography and drugs. He was sentenced, after a partially successful appeal, to nine years’ jail.

“Neal was charged with a whole range of things, including a rape charge,” Reeders says. “There are provisions in the crime act about recklessly causing serious injury. And that’s what he primarily went down on. 19A is too difficult to prove. Reckless endangerment survived on appeal, but the court clarified that defence to a reckless endangerment charge is that the complainant gave informed consent. And that’s what you want in a provision which applies to sexual conduct.”

4 . Reaction tempers

In his opening address, Kirby reiterated the oft-put case for the law’s repeal. “Someone indifferent to the risks of passing on the virus is a very anti-social person. But 19A is a very specific and discriminatory law. Make it generic. The international guidelines are clear on this: actual and intentional transmission should be legitimately prosecuted, but under general, non-HIV-specific law.”

By the afternoon of the day of the minister’s announcement, formal positions had congealed and been broadcast. Activists were cautiously welcoming the commitment. The Victorian AIDS Council and Living Positive Victoria released a joint media release: “[We] congratulate the Napthine government on today’s announcement to amend section 19A of the crimes act 1958 … [but we] strongly recommend that the Victorian government outline the details of the amendment as well as outline a timeframe for its implementation.”

The next day, their language was even more cautious, as minister David Davis’s own careful use of the words “government’s intention to amend” settled in the delegates’ minds. An amendment removing the subsection that names HIV as the sole “very serious disease” falls short of their goal of repeal.

Victorian AIDS Council CEO Simon Ruth released a statement saying: “We are concerned by the language used in yesterday’s announcement promising to amend section 19A to make it non-discriminatory for people with HIV. This suggests the possibility that section 19A could be converted into a general provision covering other infectious diseases. We believe that would be a step in the wrong direction.”

As with the solemn reminders of the plane crash everywhere, there remain many traces of the time when AIDS was our great moral panic. In this instance it’s a legislative anachronism. For now, the Napthine government is quiet on just what, exactly, that amendment will look like, and when it might enter Victoria’s fractious parliament.

This article was first published in the print edition of The Saturday Paper on Jul 26, 2014 as "Fighting stigma".

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Martin McKenzie-Murray is The Saturday Paper’s sports editor.