We all want it when we have been injured or hard done by and usually, what we want is retributive justice. Justice that provides punishment to the person we think has harmed us. Yet there is another type of justice.
Restorative justice. This justice seeks to recompense, to put things right. Restorative justice is about contrition and it requires compassion. Perhaps the most well-known example in recent history of restorative justice was the Truth and Reconciliation Commission in South Africa.
In the matter of C J Palmer, the Court has handed down retributive justice which is the role of the Court to do. Yet, if we were to use the principle of compassion from restorative justice, would we approach this situation differently? What would we learn from it?
The first thing is that all parties involved require compassion. The person who acquired HIV and who now must live with a long term medical condition that is manageable with medication and treatment. C J Palmer, equally has a right to compassion as she deals with life in a male prison system and the on-going consequences of this matter.
The following comments are made against this backdrop of both parties having the right to compassion rather than social disapproval or judgement and they relate to our personal and community responsibility.
Firstly, our personal responsibility. The news reports paint a picture of lives in chaos When our lives are in crisis, we often do things that are unwise and potentially dangerous, things which when our lives return to some sort of stability we think, “my god, why did I do that!” We have all been there - drunk too much alcohol, mixed or taken too many drugs, had risky sex because at least in sex we weren’t feeling the pain we usually felt. Even when our lives are in chaos, we still have the responsibility of thinking through, what risks we will take, the repercussions of these risks and whether we are prepared to live with the consequences.
Community responsibility is three-fold. We have a responsibility to be aware of the facts surrounding HIV. In 2018 HIV is a manageable long-term illness like other long term chronic illnesses such as Diabetes. Certainly, no one wishes diabetes on a person. The testing and learning to manage the disease does take its toll. HIV is similar. A person must be disciplined to take medication on a regular basis, to maintain their health and to get regular check-ups. However, it is manageable, and a person who manages their HIV, so their viral load is undetectable, cannot pass on the virus to another person.
As a community, we must educate ourselves, so we are not driven by the fear and stigma of the early 80’s when the medical treatments of 2018 were not available. Part of this educational process is to provide education to the inmates within all the prisons of Western Australia, particularly those who are injecting drug users for they are more at risk of contracting HIV from sharing needles than they are from sexual activity.
The second aspect is to avoid criminalising the transmission of HIV. Australia’s Seventh National HIV Strategy 2014 – 17 notes that criminalisation “impacts on priority populations through perpetuating isolation, marginalisation” and limiting their ability to seek information, support and health care”. In other words, criminalisation of HIV can lead to fear, people being less likely to seek information and support, and negative and untrue stereotypes being re-enforced. HIV, is a public health issue rather than a criminal matter.
The third aspect is for Government to develop policies that are sensitive towards Trans people. A jury has decided that C J is guilty, however, retributive justice must be provided in a way that is respectful of the person’s identity. Placing a person in a situation where they are at risk of abuse, isolation, fear, intimidation, bullying and harassment is not retributive justice - it is placing a person at risk. Governments can and do respond to the needs of groups within society. The Bennet Brook Disability Justice Centre, although it had its issues, is a case in point.
I would encourage Government to begin the process of discussing and developing policies that will ensure Trans people will not be placed at further risk, but will have the opportunity for restorative justice.