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Criminalising HIV

By Joe Thomas - posted Wednesday, 2 June 2010

According to Australian police, a Zimbabwe-born Australian citizen, a circus acrobat, who appeared on a popular TV talent show has knowingly spread HIV by having unprotected sex with a series of women. Based on police allegations, public health authorities have issued a national warning to the women (which could involve, according to various media estimates, anywhere from 12 to 100 women) to contact police and medical authorities for testing. (And, they are proposing to form a taskforce to trace down these women as well.)

The acrobat, Mr Godfrey Zaburoni, 31, is due to face a court of law soon. Australian print, TV and online media extensively covered this story and published photographs of Mr Zaburoni along with intimate details of his alleged behaviour.

It is unfortunate that the Australian public health authorities’ response was not based on the sound public health principles of respect to privacy and confidentially. Breach of confidentially and the criminalisation of alleged behaviours which facilitate HIV transmission is not a sound HIV prevention policy.


This was a golden opportunity for the public health authorities to reinforce the message of “protected sex during every sexual encounter” and it has been squandered.

Though this case raises complex legal, ethical and public health challenges, a police allegation that Mr Zaburoni was “causing grievous bodily harm” and “intending to cause grievous bodily harm” alone should not have been used as an excuse by the Public Health authorities to engage in a massive violation of the norms and principles of HIV prevention. Their actions could be interpreted as obstructing justice. According to Australian law, until proven guilty all should be considered innocent.

The peculiar nature of the prolonged period of HIV infection may present a situation where a person living with HIV could unknowingly pass the infection on to their sexual partners.

In addition, many HIV scientists believe that if a person is knowingly living with HIV and is consistently taking antiretroviral treatment, they will have low viral load and therefore, their potential to transmit the virus, even during unprotected sex is negligible. Swiss authorities even went ahead and made a public health announcement to this effect.

In this context a person living with HIV and having sex with another person itself may not constitute a criminal act. It is a matter for the legal system to decide if there is any criminal intent. Without an established procedure, pronouncing somebody a criminal is not a function of the Public Health Authorities.

In a consensual sexual relationship, responsibility to protect from sexually transmitted infection must be shared equally among the parties.


According to the media reports Australia is experiencing an increase in HIV transmissions, which indicates that the HIV infection in Australia is gradually moving from a “concentrated epidemic” to a “generalised epidemic” (from men having sex with men to injecting drug users and heterosexual inter-country travellers).

Australia has global leadership in many pragmatic polices based on sound public health principles to prevent HIV transmission. Harm reduction polices, such as the distribution of clean syringes and needles and supervised injecting rooms, prevented a potential runaway HIV epidemic among the injecting drug users in Australia.

Australian civil society’s active engagement in the policy discourse is another notable aspect of HIV prevention success in Australia, though sometimes this was criticised as “mates” putting a word for “mates”.

However, in the context of the changing profile of HIV infection, many of the strategies which were originally found to be effective in the early days are no longer useful.

It appears that the case of the health authority’s knee jerk reaction to criminalise and demonise HIV infection is laced with xenophobia which will further fuel stigma, discrimination and a subsequent increase in HIV vulnerability, particularly among the immigrant populations.

The leaders of the various Australian HIV civil societies must demonstrate a willingness to come out of their “mateship-cocoon” to address the emerging policy challenges of HIV infection among the culturally and linguistically diverse population in Australia. They must be proactive in advocating for an evidence based policy on decriminalising HIV infection.

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About the Author

Dr Joe Thomas is one of the leading social commentators on HIV and AIDS in Asia Pacific region. He has contributed towards HIV-AIDS related program and policy developments in Australia, India, Indonesia, East Timor, Philippines, Thailand, Vietnam, China, Hong Kong, Mongolia and Rwanda. He is the founding Director of the International Centre for Health Equity Inc. based in Melbourne. Australia and is the Chairperson of Asian People’s Alliance for Combating HIV and AIDS. (APACHA)

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