In the majority of cases heard before the Magistrates and District Courts there is a clear perpetrator and victim. Sometimes, the dividing line between perpetrator and victim is not as easy to demarcate.
In the recent Court case of C J Palmer, there are two victims. The young person who has contracted HIV and C J Palmer. Both have particular personal challenges, the one to learn to live constructively and with dignity with a chronic illness and the other to live constructively and with dignity in a system that would seek to take these away from her.
Apart from the above, it is not my intention in this article to deal with the personal realm but to ask a broader question – has justice been served and at what cost? Those within the community who are perhaps unaware of the advances in medical treatment for HIV may think that with a sentence of 6 years, justice has been served. Yet, as I pointed out in an earlier article, retributive justice is only one aspect of justice. Justice has other strands to it, for example reconciliation as evidenced by the Reconciliation Tribunals in South Africa at the end of apartheid. Another aspect of justice is education. Officials with the Justice system would argue strongly that prison’s have an educative role in educating prisoners for re-entry into the community after the sentence has been served.
Retributive justice is always the most expensive form of justice because it involves incarcerating people and employing staff to ensure the prison system remains coherent and not disintegrate into violence and riots.
With a 6-year sentence and a minimum 4-year non-parole period has these other strands of justice been served? While acknowledging the young person may not want or be ready to consider reconciliation, does a 6-year sentence allow for the possibility of this to occur should the parties so wish? It is more challenging for this to happen within the prison system.
What about the educative aspect of justice? What skills does a woman learn during 4 years in a male prison? What programs are in place for a woman in a male prison that will assist her re-integration into the wider community once the 4-year period is over?
The Saturday’s West Australian has reported that Judge Stevenson in his sentencing acknowledged that “social stigma is still attached to HIV despite the advances in treatments” and that “there is still in the community a great deal of learning and education required”.
The advances in treatment His Honour speaks of means that HIV in 2018 is a treatable illness. Treatable in that it is manageable. Just as a person with diabetes must monitor their blood sugar levels, so a person with HIV has to maintain regular medication and to ensure they maintain a non-detectable viral load. A person who maintains a low viral load is unable to transmit the virus to another person and can enjoy a productive, healthy and enjoyable lifestyle including an active, regular sex life.
While His Honour acknowledges further community education and learning is required, the sentence he has imposed risks increasing the very social stigma he speaks about. This risk is that the take home message for the average person on the street is;
- The passing of HIV is criminal;
- It is dangerous enough to warrant a sentence at the upper end of the range associated with grievous bodily harm; and
- If I have HIV, I better either be quiet about it and risk imprisonment or disclose it and run the real possibility of being isolated and victimised
HIV is a public health/medical issue not a criminal matter. The Joint United Nations Programme on HIV/AIDS stated in its 2008 Policy Brief”:
“There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV Transmission. Rather, such application risk undermining public health and human rights.”
Furthermore, criminalising HIV transmission contradicts the Public Health prevention message adopted by successive Australian governments and Departments of Health as evidenced in the Seventh National HIV Strategy 2014 – 2017.
Therefore, I ask again – has justice been served?
I would argue strongly that justice has not been served for several reasons.
- The possibility of reconciliation or at least rapprochement between the parties has been made more difficult.
- The educative aspect of justice is compromised for a woman in a male prison.
- The economics of justice is not sustainable. As a community our taxes will spend close to $1,000,000 dollars for one person for 4 years when they could be accommodated within the community for far less.
- The United Nations and successive Australian governments are all agreed HIV is no longer a criminal matter but a public health issue.
This case highlights the need for governments to rescind and remove outdated laws such as the criminalisation of HIV and ensure that public health policy and laws do not contradict each other. It also highlights the need for the judiciary to keep abreast of current medical opinion and scientific knowledge and where necessary tread lightly until laws are updated to reflect current understanding rather than handing down sentences that can potential re-inforce stigma and social isolation.