Australia Victoria

Last updated on: 17 September 2014

Criminalisation of HIV transmission/exposure

Australia Victoria
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
17
Number of people convicted: 
8 (1 as working as a sex worker while infected with HIV)
Applicable law: 

Public Health and Wellbeing Act 2008

Crimes Act 1958

Key wording in the law: 

Public Health and Wellbeing Act 2008 (see discussion below)

Crimes Act 1958

(s16) Causing serious injury intentionally.

(s17) Causing serious injury recklessly.

(s19a) Intentionally causing a very serious disease.

(s22) Conduct endangering life.

(s23)  Reckless conduct placing another person at risk of serious injury

Key Cases: 

Section 22 Crimes Act Prosecutions

  • In 1991, charges of reckless conduct endangering life against 2 sex workers were dismissed, and costs awarded against the Victorian Police. Section 22 Crimes Act
  • In 1993, a HIV-positive man was committed to stand trial on a charge of reckless conduct endangering life. The man died of HIV-related causes before the trial could commence. Section 22 Crimes Act
  • The Queen v B unreported 3 July 1993. Section 22 Crimes Act (acquitted)
  • The Queen v ā€œDā€ unreported 1 May 1996. Section 22 Crimes Act (acquitted)
  • Samuel Mutemeri v Wayne Cheeseman Court of Victoria, Causes, No 8332. (unreported) 29 April 1998 (reckless endangerment) Section 22 Crimes Act (acquitted)
  • Director o Public Prosecutions v F County Court of Victoria, 6 March 1998 (reckless endangerment) Section 22 Crimes Act (convicted)
  • 1999 Christopher Dennis Dirckze (convicted)
  • Seven cases since 2007, including 2008 Michael Neal (convicted), 2008 Lam Kuoth (convicted) and 2011 Paul Spiekman (convicted)
  • In Nov 2012, a HIV-positive male working as a sex worker pleaded guilty to the six remaining, less serious charges including working as a sex worker while infected with HIV; operating a brothel at his home without a permit or licence for more than seven years; possessing cannabis; and unlawful assault.

  • Club filmed male escort having sex with boy, court hears

    A HIV-infected male prostitute took a 15-year-old boy to an adult homosexual club in Collingwood and had sex with him knowing they were being filmed, a court heard today. Read more: http://www.theage.com.au/victoria/club-filmed-male-escort-having-sex-with-boy-court-hears-20121120-29nge.html#ixzz2sQUBajg1

Discussion: 

The Public Health and Wellbeing Act 2008 came into effect on 1 January 2010. That Act superceded the Victorian Health Act 1958, which included an offence (at section 120) of knowingly transmiting an infectious disease (including HIV). There is no comparable offence in the Public Health and Wellbeing Act.

Although not tied to specific penalties, the statement of principles applying to the management and control of infectious diseases in section 111 of the Public Health and Wellbeing Act 2008 includes the principles that:

  • a person who has, or suspects that they may have, an infectious disease should
  • ascertain whether he or she has an infectious disease and what precautions he or she should take to prevent any other person from contracting the infectious disease; and
  • take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease.

The principles also state that:

  • a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease.

Crimes Act 1958(s16) Causing serious injury intentionally

  • A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence. Penalty: Level 3 imprisonment (20 years maximum).

Crimes Act 1958(s17) Causing serious injury recklessly

  • A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. Penalty: Level 4 imprisonment (15 years maximum).

Crimes Act 1958(s19a) Intentionally causing a very serious disease

  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. Penalty: Level 2 imprisonment (25 years maximum).
  2. In subsection (1) very serious disease means HIV within the meaning of section 3(1) of the Public Health and Wellbeing Act 2008 .

Crimes Act 1958(s22) Conduct endangering life.

  • A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence. Penalty: Level 5 imprisonment (10 years maximum).

Crimes Act 1958(s23) Conduct endangering persons

  • A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence. Penalty: Level 6 imprisonment (5 years maximum).