HIV transmission law in the age of treatment-as-prevention

What is it about?

This paper discusses a recent high-profile Australian case where HIV transmission and exposure has been prosecuted, and considers how the interpretation of law in this instance impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, concepts of ‘safe(r) sex’ need to be expanded to include sex that is ‘protected’ by means of the positive person being virally suppressed.

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Why is it important?

Laws that criminalise 'exposure' to HIV appear to be out of step with science that tells us that if a person with HIV is virally suppressed s/he cannot transmit the virus.