FIGHTING FOR THE FULL DECRIMINALISATION OF SEX WORK
By: Jane Green
As the Victorian Government’s inquiry into the decriminalisation of sex work begins this year we must not miss another opportunity to fight stigma and discrimination against sex workers living with HIV.
In July 2014, during the international AIDS conference held in Melbourne, the Victorian Government committed to reviewing legislation criminalising HIV. Then Attorney General Martin Pakula stated at the time:
“This is about reducing the stigma and discrimination faced by people living with HIV, and in turn promoting equal protection by the law of all Victorians.” 1
In May 2015, when the reform was passed, one group of Victorians remained criminalised in terms of HIV status – sex workers.
At present, sections 19-20 of the Sex Work Act (1994) and part 2(6) of the Sex Work
Regulations (2016) continue to criminalise sex workers based on HIV status and a range of other sexually transmissible infections.
When the licensing system came into being, this criminal justice-based approach was seen as being in the public interest. However for many years now, the Australian government has pursued a public health approach as a key part of the response to HIV, which includes working in partnership with priority populations.
This approach has long been considered a significant factor in Australia’s successful HIV response.
Laws that criminalise people living with HIV act as barriers to prevention, testing, treatment, care and support. It is this emphasis on prevention, testing, treatment, care and support – the enabling environment – that is the foundation of the public health approach.
Laws that criminalise HIV status for sex workers undermine public health goals as well as the safety, health and wellbeing of sex workers. These laws perpetuate stigma against sex workers and people living with HIV and fail to meet the commitment made in 2014, including that of“promoting equal protection by the law.”
We know that medical research in Australia shows that sex workers as a population have rates of HIV and STIs that are the same or lower than the general population and have very high uptake of safer sex practices. It is also the case that advancements in biomedical intervention, shown through campaigns such as U=U (undetectable = untransmittable), means that prior emphasis on criminalisation is no longer justified.
In rare instances where it is reported that an individual may have placed another person at risk, the Chief Health Officer and Department of Health have power to manage these situations, including the ability to refer to police if necessary. This system of management and powers can and should be applied equitably to all Victorians.
Sex workers and sex workers’ representative organisations have a long history of calling for equal protection before the law. Sex workers have been calling for the full decriminalisation of sex work for decades – this includes calls for the removal of HIV criminalisation. In late November last year, the Victorian Government announced an inquiry into decriminalisation of sex work. Calls for the full decriminalisation of sex work are about recognising sex workers as workers, who deserve the same rights and protections under law as other Victorian workers. Decriminalisation is also about the removal of laws that criminalise and stigmatise sex workers specifically on the basis of our status as sex workers.
Laws that criminalise sex workers living with HIV cross the intersections of multiple marginalised communities, doubling-down on stigma and discrimination under law that we should ALL be fighting. We look towards a future where the Victorian Government removes HIV criminalisation entirely, as part of the full decriminalisation of sex work, and strongly encourage people to join us in calling on the government to do this!
1 ‘HIV-specific law criminalising deliberate transmission to be amended’, Melissa Davey,
The Guardian, 20th July 2014.
Jane Green is an activist, sex worker and spokesperson for Vixen Collective, the representative peer only organisation for sex workers in Victoria.
SEX, DISCLOSURE AND ‘REASONABLE PRECAUTIONS’
By: Craig Burnett
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 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.com.au or Living Positive Victoria’s website for information and support if you need to speak with someone to help navigate these issues.
THE SLIPPERY SLOPE OF SPIT-AND-TEST LAWS
By: Paul Kidd
One of the most fundamental principles of Australia’s successful HIV response is that HIV testing should only occur with the informed consent of the person being tested. But what happens when a police member or other emergency services worker is exposed to the risk of HIV at work?
A series of Australian states and territories have enacted special laws that enable testing of individuals whose bodily fluids come into contact with emergency services workers for HIV and other blood-borne viruses (notably hepatitis C) without consent.
In most if not all cases, these laws are being enacted in response to pressure from police, who argue that they should not have to go through lengthy periods of anxiety when they come into contact with bodily fluids in the course of their work. The usual scenario involves spitting, which carries no risk of HIV transmission. Forcibly testing a person also cannot determine if HIV transmission to an emergency services officer has occurred.
Despite reassurances that the risk is very low, the police member may experience crippling anxiety about the risk of HIV or other diseases, sometimes to the extent that they cannot work while they await the all-clear.
No-one would argue that deliberately spitting on someone is anything other than a vile act. If done intentionally or even recklessly, spitting can be considered an assault, and assaults on police and other emergency workers are considered serious crimes that can result in a prison sentence.
But not all cases where a person is alleged to have spat on a police member fit within that category. Many cases where people are alleged to have spat on police turn out to be unintentional: during the course of a forced apprehension or arrest, someone might involuntarily expel some saliva, and the police doing the arrest might come into contact with it.
So-called ‘spit-and-test’ laws have been passed in South Australia, Western Australia and the Northern Territory over recent years, and are proposed for New South Wales. These laws allow the police themselves to order that a person be tested if they consider there is a risk of transmission. But police aren’t medical experts, and they are inevitably biased towards their own colleagues. These laws have been brought in at the behest of police specifically due to the difficulty of getting a court or public health order.
Victoria has had a mandatory testing law for some time, but it operates differently. The Chief Health Officer, not a police officer, is the person who has the power to order the test. The CHO is a medical expert and independent of the police. They understand the risks of HIV transmission in a scientific and unbiased way, and are bound by law to respect the rights of the person proposed to be tested. A person who is subject to a testing order has the right to have it reviewed by The Victorian Civil and Administrative Tribunal,1 and the test can only be forcibly carried out if the CHO gets a court order authorising the police to use force. Perhaps unsurprisingly given these safeguards, an audit of mandatory testing laws published last year by the National Association of People With HIV Australia (NAPWHA) found that zero tests had been ordered since at least 2014.1
Compare that with Western Australia, which passed its spit-and-test law in 2014.2 In that state, a senior police officer is the person who gets to make the decision about whether a ‘suspected transferor’ should be tested. Once the order is made, police can apprehend and detain the person, take them to a health facility, and force them to be tested. Only if the ‘suspected transferor’ is a child or a person with cognitive impairment does any independent body get involved. Shockingly, in a 31⁄2-year period, NAPWHA audit found that 387 applications for mandatory testing were made by police, and only ten of these (2.6 percent) were rejected.
Similar laws to these exist in South Australia and Northern Territory, but NAPWHA was refused access to the data on how many times they were applied. These are highly problematic laws. They fly in the face of one of the most important and long- established principles of our HIV response: testing should be voluntary, confidential, based on the informed consent of the person being tested, and supported by counselling and care. Spit-and-test laws give police, who have no medical expertise, the power to force vulnerable people to be tested for HIV and other diseases against their will, sometimes with the use of force. In most cases, this is justified on the grounds that the police member is subjected to a period of anxiety over the risk of getting a disease, when that anxiety is based on stigma, not science.
The circumstances in which a person’s right to bodily autonomy can be abrogated should be very rare. The NAPWHA audit shows that it is possible to have a system of mandatory testing that only applies in rare cases – Victoria’s laws, which have not resulted in a single mandatory test in over 31⁄2 years, should be the model, not the laws adopted in SA, WA, NT and, soon, NSW.
1 Sally Cameron, The System Is Broken: Audit of Australia’s Mandatory Disease Testing Laws (HIV Justice Network and the National Association of People with HIV Australia, 2019) 23.
2 Mandatory Testing (Infectious Diseases) Act 2014 (WA).
Paul Kidd is a lawyer and anti-criminalisation activist, and a former President of Living Positive Victoria.
Disclaimer: Poslink is published by Living Positive Victoria. All views expressed are the opinion of the authors and are not necessarily those of Living Positive Victoria, its management or members. Copyright for all material in Poslink resides jointly with the contributor and Living Positive Victoria.