New Zealand

Last updated on: 31 August 2012

Criminalisation of HIV transmission/exposure

New Zealand
Whether Specific law enacted: 
-
Number of people prosecuted: 
-
Number of people convicted: 
-
Applicable law: 

Criminal Law: Crimes Act 1961

http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html

Crimes Act 1961 (s156) Duty of persons in charge of dangerous things

Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Crimes Act 1961 (s188) Wounding with intent

(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.

Crimes Act 1961 (s145) Criminal nuisance

(1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.

(2) Every one who commits criminal nuisance is liable to imprisonment for a term not exceeding one year.

Key wording in the law: 

Duty of persons in charge of dangerous things, wounding with intent, criminal nuisance

Key Cases: 

New Zealand has prosecuted eleven cases of HIV exposure or transmission under existing laws. All of the defendants have been male. Of the ten cases in which a verdict was recorded, eight of the people charged were found guilty. Prosecutions have taken place for 'criminal nuisance '(maximum sentence – one year in prison); 'wounding with intent' (seven years); and 'wilfully infecting with a disease' (14 years). Prosecutions can also take place under the legal “duty of persons in charge of dangerous things”, although there is no specific sentence ascribed to the breaking of this law.

The first prosecution for 'wilfully infecting with a disease' took place in 1995, with the judge ruling that intent had not been proven and instead found the man guilty of the lesser charge of 'wounding with intent'[1]. The two most recent cases were only the second and third times that charges of 'wilfully infecting with a disease' have been laid.

One man charged twice in two separate cases was found not guilty in a landmark ruling in 2005. This case established that it is not necessary for a person who knows that he or she is living with HIV to disclose his or her HIV-positive status to a partner if a condom is used during vaginal intercourse, or before unprotected oral sex[4]. See New Zealand Police v. Dalley, District Court of Wellington, Court File No. CRI-2004-085-009168, 4 October 2005. Also see PDF attachment.

A 2009 case, which resulted in the defendant apparently committing suicide in his cell prior to his trial, involved 14 male and female complainants of whom seven alleged that the man was the source of their HIV infection[2].

A 2010 case, which resulted in an eight-year, four-month prison sentence, involved a HIV-positive man who injected his wife with a needle dipped in his own blood[3].

See also: Cameron S et al. International trends towards the criminalisation of HIV transmission. UK, New Zealand and Canada: laws, cases and response, Cameron S and Rule J (2009).

[1]Bernard EJ New Zealand: ‘HIV predator’ may make legal history. Criminal HIV Transmission, 3 June 2009.

[2]Bernard EJ New Zealand: Alleged ‘HIV predator’ dies in cell. Criminal HIV Transmission, 30 November 2009.

[3]van der Stoep L Eight years' prison for HIV infection. Sunday Star Times, 7 February 2010.

[4]Bernard EJ Groundbreaking New Zealand ruling finds condom use eliminates HIV disclosure requirement. www.aidsmap.com/page/1422092/

Discussion: 

Re: Crimes Act 1961 (s156) Duty of persons in charge of dangerous things

All people in New Zealand have a duty to take care when they are in control of something that can endanger life, health or safety of other people. Infectious bodily fluids of HIV positive people are considered to be something HIV positive people are in control of. This means that legally they must take reasonable precautions to avoid transmitting HIV to other people.

Re: Crimes Act 1961 (s188) Wounding with intent

If HIV is transmitted and it cannot be shown that there was some concern taken by the positive person for the safety of their partner (for example: by wearing a condom ) the positive person will be criminally liable and may be sentenced to up to 7 years in jail.

Re: Crimes Act 1961 (s145) Criminal nuisance

Criminal nuisance means that when health or safety is put at risk people have to comply with legal duties.

 

Survey respondents/Organisations working on HIV and the Law: 

New Zealand AIDS Foundation

Body Positive Inc. New Zealand

Further reading: 

New Zealand AIDS Foundation poster presented at the Pan-Pacific HIV/AIDS Conference in October 2005

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

From early 2005, New Zealand will be undertaking HIV screening for migrants. This decision has been made as part of a comprehensive review of New Zealand’s health screening requirements. Some changes relating specifically to tuberculosis screening have already been implemented. The full set of changes, including screening for HIV, and a wider and updated set of tests for other expensive-to-treat conditions, will be implemented in early 2005, for people seeking to be in New Zealand for longer than 12 months.

While HIV-positive people may not, prima facie, meet the definition of “acceptable standard of health”, waivers of this requirement will be available for family members of New Zealand citizens and residents, and for refugees. HIV screening will also be carried out for people proposed for the Refugee Quota programme. A maximum of 20 HIV positive people will be accepted as Quota refugees in any one year.

Residency and work permit applicants must undergo HIV-testing. No tests are required from tourists staying less than 3 months.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Equal/almost equal substitute nationally recognized

For updated information, please go to: http://ilga.org

Protective laws and policies for people living with HIV: 

Yes