The Downing Centre Court has only been open for two weeks since the summer break, but has already seen its fair share of interesting cases.
Perhaps one of the most disturbing so far is that of a man accused of infecting his boyfriend with HIV and failing to forewarn other sexual partners about his condition.
The 28-year-old was arrested by the Australian Federal Police at Sydney Airport on 3rd January 2016. He appeared at the Downing Centre Local Court early last week, and was reportedly charged under section 35 of the NSW Crimes Act with ‘recklessly inflicting grievous bodily harm’; an offence which carries a maximum penalty of 10 years imprisonment. He pleaded not guilty.
The man is alleged to have knowingly infected his former partner with the deadly virus in 2012. He is further accused of failing to tell other sexual partners about his condition, despite laws which require those who know they have HIV to disclose that information before having sex.
As most people are aware, HIV is a type of retrovirus which can eventually turn into AIDS, an immunodeficiency illness which causes the progressive failure of vital organs. It is spread through the sharing of bodily fluids, including semen, blood and vaginal fluid.
A police prosecutor told the court that:
‘The defendant has on more than one occasion engaged in sexual conduct without disclosing what is an extremely serious medical condition…There is evidence, I am told, that he has propositioned other people to participate in sexual intercourse without the use of protection.’
However, the man’s criminal defence lawyer submitted that the complainants were all aware of his client’s condition.
Public Health Laws on Sexually Transmitted Infections
In addition to offences under the Crimes Act, a person who knowingly fails to tell a sexual partner that they have a sexually transmitted infection (STI) can be charged under section 79 of the Public Health Act, which carries a maximum penalty of $5,500. The section reads:
A person who knows that he or she suffers from a sexually transmitted infection is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:
(a) Has been informed of the risk of contracting a sexually transmitted infection from the person with whom intercourse is proposed, and
(b) Has voluntarily agreed to accept the risk.
The HIV/AIDS Legal Centre points out that infected persons are able to raise a defence if they took “reasonable precautions” against transmitting the infection.
Unfortunately, the law has failed to explicitly define what “reasonable precautions” are – but the HIV/AIDS Legal Centre says ‘it is likely that using condoms and lube will constitute ‘reasonable precautions’.’’
Recklessness v Intention
As stated, the accused man is reported to be charged with ‘recklessly causing grievous bodily harm’; which comes with a maximum 10 year prison sentence. That offence requires the prosecution to prove beyond reasonable doubt that he foresaw the possibility of very serious harm being inflicted as a result of his actions.
The Crimes Act also contains the more serious offence of ‘intentionally causing grievous bodily harm’; which falls under section 33 and carries a maximum penalty of 25 years imprisonment. That offence requires proof that the defendant knowingly and deliberately caused very serious harm to another. The prosecution has presumably decided against pressing the more serious charge thus far because it is harder to prove.
The defendant has been released on strict conditional bail and is required to return to Downing Centre Local Court on February 18.