The Autumn issue of Poslink examines how HIV criminalisation increases stigma and inhibits testing, treatment care and support. After years of progress there are still many areas of criminal and public health law that impact people living with HIV in Australia.
In this edition, we asked Craig Burnett, the Senior Research and Policy Officer at Living Positive Victoria, how people living with HIV negotiate disclosure, sex and ‘reasonable precautions’ for prevention.
SEX, DISCLOSURE AND ‘REASONABLE PRECAUTIONS’
Public health laws across all Australian states no longer require people living with HIV to disclose their status before sex so long as reasonable precautions to prevent transmission are used. However, the decision to disclose is rarely so straightforward.
When I lived in Sydney, 12 years ago, NSW still had mandatory disclosure laws. I was 20 and had been diagnosed less than a year when I moved from Melbourne.
For me, HIV was still a fresh wound that I hadn’t really dealt with. I had hidden behind the fact that the laws in Victoria did not require me to disclose my status so long as I was using reasonable precautions. Suddenly, it didn’t matter if I was using condoms or any other method of protection.
This scared me a lot. I wanted to do the right thing and the thought of being criminally charged frightened me. I had always told the truth to anyone who asked, but I was now thrown into a new situation of having to always tell. Fortunately, I made a friend on my first weekend in Sydney who was able to help me.
There was not really a black and white way of dealing with this issue. Most people living with HIV who I met in Sydney seemed to tell people who they intended to see again, but not necessarily those who might be one-offs or passing flings. I adopted this way of thinking.
It wasn’t long after I moved to Sydney that I started dating someone. I had told him of my status, and he was knowledgeable about the virus and accepting of me and my situation. At other times when we had sex with other people, he made me feel guilty for not disclosing even though we used condoms. I didn’t appreciate being told off by someone who had never had the anxiety of disclosing, and I was really confused as to why it was such a big deal when it wasn’t across the border.
Even without the legal obligation, you might think that the easiest way around all of this is for people living with HIV to disclose before sex.
It is important to remember that disclosure can add more complications to the lives of people living with HIV. People living with HIV may fear what happens to this information, and quite often these discussions are had without consideration of the emotional strain it can take for someone to disclose their status. It is not only the legal side that people living with HIV worry about. We also worry about stigma, emotional and physical abuse, blackmail and losing control
of the information through other people disclosing without consent.
Although people with HIV no longer need to disclose before sex, public health laws do require reasonable precautions to be taken to prevent transmission. ‘Reasonable precautions’ are not defined in law and in the event of a trial this would be tested in court based on the circumstances of the case. However, there are several methods of HIV prevention we can place our confidence in.
Historically, condoms with lube were the standard for preventing HIV transmissions. Although they must be used correctly every time, condoms provide reliable protection. Pre-exposure prophylaxis (PrEP) and treatment as prevention (more commonly referred to as U=U) have both been rigorously scientifically tested and are currently the most effective ways to prevent HIV transmissions. Health departments and HIV legal experts in Australia remain confident that using condoms, having a viral load below 200 copies/ ml or seeking and receiving confirmation from a sexual partner that they are taking PrEP, all constitute reasonable precautions. It should also http://thedisclosureproject.org.au be noted that police and prosecutors are not actively taking on these cases.
The issue of disclosure can be very difficult and emotional for some people living with HIV. There are many contexts to navigate beyond sex, including work, families, and social networks.
Later this year, Living Positive Victoria will be releasing a resource produced in partnership with the Victoria Law Foundation. In the meantime, visit thedisclosureproject.org.au or Living Positive Victoria’s website for information and support if you need to speak with someone to help navigate these issues.