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The case of CJ Palmer

On the 16th February 2018 transgender sex worker CJ Palmer was sentenced to six years in a male prison in Western Australia after being found guilty of grievous bodily harm for the transmission of HIV to a sexual partner.

As Christopher Kelly reports such a verdict, yet again, highlights the negative impact the use of criminal law has on Australia’s HIV response.

First some background. CJ Palmer was accused of infecting a client with HIV when they engaged in condomless sex in 2015. It was alleged that CJ was criminally negligent because she did not take any precautions to prevent the transmission of the disease. Throughout the case, CJ maintained she was unaware of her positive status and that the man was not a client but someone with whom she was in an ongoing sexual relationship. In January, after a week-long trial and a four-hour deliberation, a jury at the WA District Court found CJ guilty. Admitting that the case was “unusual” because it differed from other grievous bodily harm trials, which usually involve someone being physically attacked, the judge said CJ had breached her “duty of care” to the victim.

“The effect of this decision and accompanying sensationalised community discussion is a perception that people living with HIV are criminals,” said Jules Kim, CEO of the Australian Sex Workers Association, in response to the outcome. “This unfairly reinforces discrimination against sex workers and people living with HIV, which is already pervasive in the broader community.” Indeed, criminalising people with HIV denotes blame; that the positive person is at fault. But how can there be fault at play in cases of non-intentional HIV transmission? HIV is an indiscriminate disease that passes stealthily from one person to another.

The stigma surrounding HIV may make it difficult for people living with the virus to receive a fair trial. For CJ, as an HIV-positive transgender sex worker, the stigma was three-fold. This was on display during the reporting of the case when CJ was wrongly described as “a man who identifies as a woman” and repeatedly referred to as a “prostitute” instead of “sex worker”.

Not only does the outcome of CJ’s case continue to reinforce discrimination surrounding sex work and HIV, it also serves to show how outdated people’s thinking is towards the disease. HIV is no longer a death sentence. Yes, it is a lifelong illness — but it is a wholly manageable condition. People with HIV lead long and healthy lives. And, with treatment, a person with HIV is unable to pass the virus on through sex. “Criminal cases involving HIV or exposure require the courts to correctly comprehend the science of HIV transmission and the impact of HIV diagnosis,” said Scott McGill, acting CEO of the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine.

With so much ignorance surrounding the disease, there is a strong argument for HIV to be dealt with — not through the justice system — but through the public health system. “The HIV epidemic will be ended in clinics and in the community — not the courts,” said Dr Bridget Haire, President of the Australian Federation of AIDS Organisations. “The resources expended policing and prosecuting HIV transmission would be far better spent making HIV-prevention tools and medicines available to people who need it.”

President of the National Association of People with HIV Australia, Cipri Martinez, agrees. “There are alternatives to the criminal justice system that are more appropriate for the management of allegations of HIV transmission. Prosecutions for HIV transmission undermine the public health response to HIV by creating an environment of fear and prejudice. This reinforces stigma and contributes to further HIV transmission.” As Australia’s National HIV Strategy notes: criminalisation “impacts on priority populations through perpetuating isolation, marginalisation and limiting their ability to seek information, support and healthcare”. 

CJ’s case also exposes the flawed notion that the positive population is solely responsible for preventing onward HIV transmission. Yet it is no longer us and them, poz and neg. With a variety of preventative tools now at our disposal — such as TasP and PrEP — we are all in this together. Criminalising HIV transmission contradicts the most essential HIV prevention message: that every person has a responsibility to take all reasonable precautions to avoid contracting an STI or HIV.

“For too long, people living with HIV have borne the brunt of expectation, responsibility, and blame when it comes to keeping the community safe from HIV,” said Nic Holas, co-founder of The Institute of Many — a peer-run group for positive people. “TIM hopes that as the sero-divide between HIV-positive and HIV-negative people diminishes, we will also see a reduction in the unnecessary stigmatising and criminalising of people living with HIV.”  

Unfortunately, as shown in WA, application of the criminal law to cases of HIV transmission, exposure or non-disclosure counteract the promotion of effective prevention and shared responsibility, ultimately undermining public health and further demonising an already stigmatised community. If we are to end HIV, we need to end the criminalisation of people with HIV — people like CJ.

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