Papua New Guinea

Last updated on: 3 May 2012

Criminalisation of HIV transmission/exposure

Papua New Guinea
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
0
Number of people convicted: 
0
Applicable law: 

Criminal Code Act 1974

HIV/AIDS Management and Protection Act 2003

PDF: 
application/pdf iconHIV MANAGEMENT & PREVENTION ACT 2003.pdf
Key wording in the law: 

Criminal Code Act 1974: (s 298) Unlawful Homicide; (s 340) Assaults Occasioning Bodily Harm

HIV/AIDS Management and Protection Act 2003: Transmission or attempted transmission

Key Cases: 

Although there have been no reports of prosecutions, a Papua New Guinea MP was investigated in 2006 following the death of two women from HIV-related illnesses, although it appears that the charges were later dropped. See attached media report.

PDF: 
application/pdf icon2006_the_age_australia_png_mp_could_face_aids_charges.pdf
Discussion: 

Criminal Code Act 1974(s 298) Unlawful Homicide.

A person who unlawfully kills another is guilty of the crime of wilful murder, murder, infanticide or manslaughter, according to the circumstances of the case.

Criminal Code Act 1974(s 340) Assaults Occasioning Bodily Harm.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

HIV/AIDS Management and Protection Act 2003(s 23) Intentional Transmission.

(1) The intentional transmission or attempted transmission of HIV to another person is

  1. an assault or attempted assault, as the case may be, occasioning bodily harm within the meaning of Section 340; and
  2. where death has occurred –an act of unlawful killing within the meaning of Section 298 of the Criminal Code Act 1974.

(2) Section 297 of the Criminal Code Act 1974 shall not apply in a prosecution under Subsection (1)(b).

(3) It is a defence to a charge of an offence relating to the intentional or attempted transmission of HIV to another person that –

  1. the other person was aware of the risk of infection by HIV and voluntarily accepted that risk; or
  2. the other person was already infected with HIV; or
  3. where the transmission or attempted transmission is alleged to have occurred by sexual intercourse –

(i) a condom or other effective means of prevention of HIV transmission was used during penetration; or

(ii) the accused person was not aware of being infected with HIV.

Survey respondents/Organisations working on HIV and the Law: 

Pacific Island Aids Foundation

Further reading: 

Colvin E (2002). Criminal Responsibility under the South Pacific codes

PIAF. Understanding Papua New Guinea's HIV/AIDS Management & Prevention ACT 2003:

Other laws and policies with an impact on responses to HIV

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

Authors note: the situation in Papua New Guinea is not entirely clear. It seems that HIV-positive visitors are not allowed to enter the country.

All applicants seeking to travel to PNG must be of good health and good character. In some cases, medical documentation and a local police clearance certificate will be required. This will depend on the purpose and duration of the visit (please refer to the appropriate entry category). If an applicant has a criminal conviction, or is subject to criminal prosecution, that information must be disclosed at the time of application. Failure to disclose this information may result in the entry permit being refused, cancelled or deemed void.

Where medical documentation is required, this consists of:

  • Medical examination report obtained from an approved doctor or hospital;
  • HIV tests (Pathology Report required) for applicants over 16 years of age; and
  • Chest X-ray (Radiology Report) for applicants over 16 years of age.

The prescribed medical examination report form and radiology form are available from the nearest PNG Diplomatic mission. The doctor carrying out the examination and the radiographer carrying out the chest X-ray are required to complete and sign the relevant forms.

Entry Permits may be cancelled by the Minister for Foreign Affairs and Immigration (DFAI) in accordance with Section 6 of the Migration Act 1978.

Grounds for Entry Permit Cancellation include:

  • The entry permit holder is suffering from a disease which presents a danger to the community;

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

Laws relating to same sex, sexual relations: 

Male to Male relationships: Not Legal

Punishments for male to male relationships: Imprisonment of 10 years or more

Female to Female Relationships: Legal

Marriage and Substitutes for Marriage: No law

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

Protective laws and policies for people living with HIV: 

Yes

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