New Zealand

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Switzerland: New handbook for parliamentarians on effective HIV laws includes case study and interview with Green MP Alec von Graffenried

04 Feb 2014
A new publication from the Inter-Parliamentary Union (IPU) and United Nations Development Programme (UNDP), written by Veronica Oakeshott, is an excellent new resource to help inform advocacy efforts to remove punitive laws and policies that impede the HIV response. Aimed … More

New Zealand: Court of Appeal rules HIV non-disclosure is sexual assault

12 Mar 2012
Update(s): 12/13th March 2012 The New Zealand Court of Appeal has ruled that otherwise consensual unprotected sex without disclosure of known HIV-positive vitiates consent, meaning that potential HIV exposure (non-disclosure without transmission) could well be upgraded from criminal nuisance to … More

New Zealand: Charges dropped in criminal HIV transmission case

30 Mar 2011
All charges against a Wellington man accused of not disclosing his HIV-positive status prior to unprotected sex with his female partner who subsequently tested HIV-positive have been dropped because police are unable to trace the complainant. Not only did Justice … More

Global: Powerful personal testimony and video highlight criminalisation concerns

30 Nov 2010
IPPF (the International Planned Parenthood Association) has been campaigning against the criminalisation of HIV non-disclosure, alleged exposure and non-intentional transmission for the past few years, and this World AIDS Day they are highlighting their ‘Criminalise Hate Not HIV’ Campaign. They … More

New Zealand: Alleged ‘HIV predator’ dies in cell

30 Nov 2009
The man at the centre of New Zealand’s biggest ever criminal HIV transmission case died in his cell in the early hours of Monday morning. His death is not being treated as suspicious, but the Coroner is investigating the circumstances. … More

New Zealand: African migrant sentenced to three-and-a-half years for HIV transmission

29 Nov 2009
A 34 year-old HIV-positive New Zealand citizen originally from the Democratic Republic of Congo has been sentenced to three-and-a-half years in prison for grievous bodily harm with a concurrent six months for criminal nuisance. The charges stemmed from not disclosing … More

New Zealand: ‘HIV predator’ case increases testing and stigma

10 Jul 2009
Following the intense media reporting of the alleged ‘HIV predator’ case, the New Zealand AIDS Foundation reports that the case has increased stigma against people already living with HIV, and also increased the number of people coming forward for HIV … More

New Zealand: ‘HIV predator’ is named; seventh complainant adds further charges

19 Jun 2009
The man dubbed the ‘HIV predator’ had his name and face splashed all over New Zealand’s media today in what has become the biggest criminal HIV transmission case in NZ history. There are now seven complainants (six men, one woman) … More

New Zealand: Article examines implications of ‘HIV predator’ case

09 Jun 2009
After all the hysterical media reporting surrounding the current ‘HIV predator’ case comes a thoughtful analysis of the situation from the New Zealand Herald. The article also usefully includes a summary of the most important criminal HIV transmission cases over … More

New Zealand: ‘HIV predator’ may make legal history

03 Jun 2009
A 40 year-old gay man in New Zealand whom the media have named the ‘HIV predator’ (interestly this moniker was created by the gay media and since he currently has interim name suppression, this stigmatising phrase continues to be used … More

New Zealand: HIV confidentiality laws may change due to ‘HIV predator’ case

31 May 2009
In my last entry on the alleged NZ ‘HIV predator’ case – when I highlighed that GayNZ.com was pushing for the arrest and prosecution of an HIV-positive gay man in Auckland who allegedly meets men online, ‘persuades’ them to fall … More

New Zealand: Alleged ‘HIV predator’ highlights gay community tensions

15 May 2009
A rather disturbing developent from New Zealand highlights the tensions within the gay community over responsibility for HIV transmission during consensual, casual sex. Update: The story has now gone mainstream, and it’s becoming clear that this may well be New … More

New Zealand: African migrant charged with criminal HIV transmission

30 Mar 2009
A 34 year-old HIV-positive New Zealand citizen originally from the Democratic Republic of Congo is under investigation following accusations that he did not disclose his HIV status before having unprotected sex with an Aukland woman, who is now HIV-positive. According … More

New Zealand: New bill proposes to make HIV a notifiable disease

24 Feb 2008
A Press release from the New Zealand AIDS Foundation highlights concerns over the forthcoming Public Health Bill to make HIV a notifiable disease. The NZAF supports the Bill as along as all the necessary epidemiological information remains anonymised. NZAF is … More

Editorial: The Transmission of HIV and the Criminal Law

07 Nov 2007
THE TRANSMISSION OF HIV AND THE CRIMINAL LAWEditorial by Matthew Groves in Criminal Law Journal (Australia)(2007) 31 Crim LJ 137There has recently been considerable publicity about the criminal law and the transmission of human immunodeficiency virus (HIV). In South Australia, … More

Last reviewed 01 June 2017

Laws

Applicable laws

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.

Applicable key wording

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

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.
 

Further reading

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

Latest cases and news can be found at: http://www.hivjustice.net/country/nz/

Cases

Overview

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/

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017