By CHRIS BARTON
When Justin William Dalley, 35, aka "Absolute Bliss", pleaded guilty to a charge of criminal nuisance in the Wellington District Court last month, he was acknowledging his semen had endangered the safety, health - and possibly the life - of his partner of four months.
Absolute Bliss, Dalley's codename on a dating website, had sent his 22-year-old girlfriend to hell.
Dalley was prosecuted because his semen was, in legal terms, a "dangerous object", because it contains the human immunodeficiency virus (HIV) - the precursor to acquired immunodeficiency syndrome (Aids).
In possession of such a threat, Dalley had a duty in law to make sure he didn't endanger anyone else - something he could have done by telling his partner before having sex that he carried the virus, or by using a condom. Dalley did neither.
When he is sentenced at the end of this month, Dalley is likely, because of his guilty plea, to get a reduced sentence of about six months imprisonment. The maximum for the rarely used criminal nuisance provision of the Crimes Act is one year.
Dalley's partner, who has name suppression, wants a law change to better protect people such as herself. She faces a three-month wait to find out whether she has contracted HIV.
"I'm saying the risk is still there even with condom usage, and that I should have the choice if I want to take the risk or not."
She wants disclosure to be a mandatory requirement for sexual partners and specific laws to cater for endangerment from infectious diseases.
Though he sympathises with her plight, Bruce Kilmister of Body Positive, a support organisation run by HIV-positive people, asks a hard question: "Why did she allow herself to be exposed to unsafe sex practices?"
There's a similar response from New Zealand Aids Foundation executive director Rachael Le Mesurier: "In this case if they had used condoms, they probably wouldn't be in this situation right now. It's not about whether he disclosed or not, but whether he used a condom."
Both argue safer sex and the use of condoms, rather than legislation, is the only effective way to prevent HIV.
"I don't think any amount of legislation around the bedroom will guarantee the safety of any individual. I don't think we can abort personal responsibility to the state," Kilmister says.
Le Mesurier's concern is that any legislation further enforcing disclosure about one's HIV status will not only detract from the safe sex message, but be counterproductive in reducing the disease. "To dictate that everybody who is HIV-positive should disclose is unrealistic and hugely punitive when what we're actually trying to aim for is no transmission."
Acting director of Public Health Doug Lush says it's unrealistic to expect people with HIV not to have sex: "The Ministry's advice is that everyone is responsible for their own sexual activity so people need to protect themselves and treat every partner as potentially infectious - that's the message we give widely."
Dalley has experienced the stigma of HIV. "If you say to someone upfront, 'I'm HIV-positive' the reaction of the public isn't very good. It's like you're a leper."
Le Mesurier points out that disclosure rules would be of no help to the estimated 30 per cent of HIV carriers who are unaware they have the virus.
"In the context of consensual sexual activity, you don't catch HIV, you allow someone to give it to you, by agreeing to unsafe activity," she said in statement following news reports of another case - that of Zimbabwean refugee Shingirayi Nyarirangwe who was sentenced to three years jail in September to four charges of criminal nuisance and three of assault.
Dalley now pushes the safer sex message too: "I don't believe it's about disclosure. It's about you should wear condoms full stop. HIV is spreading more and more into the heterosexual community. I've got a lot of people I know who are gay and they would never contemplate sleeping with anybody without a condom. They're just amazed by the heterosexuals - that half of the men don't wear them."
Quite where the law stands on disclosure of HIV status depends on the circumstances. All prosecutions to date have been in instances of HIV-positive men having unsafe sex and not telling their sexual partners they had HIV.
Under those circumstances the law is very clear: "If you know you present a danger to another person," says police senior legal adviser Hamish Woods. "You are obliged by law to take all reasonable steps to prevent that danger."
If you don't you could face a criminal nuisance charge like Dalley, and if HIV infection occurs, the more serious charge of grievous bodily harm, which carries up to seven years imprisonment. In New Zealand the charge cannot escalate to manslaughter or murder if the person infected with HIV contracts Aids and dies.
"HIV tests a lot of principles in the criminal law," says Warren Brookbanks, associate professor of law at Auckland University, "not least being the requirement in common law that death has to occur in a year and day for causation to operate." With HIV infections often dormant for years, that makes establishing a clear causal link difficult. But a manslaughter charge would be possible if death occurred quickly and it could be shown the person knowingly infected someone negligently or not caring as to the possible consequences.
The year and a day rule was abolished in England in 1996.
Kevin Dawkins of the Otago faculty of law says a recent case in the English Court of Appeal is significant in instances where someone consents to having sex with another knowing he or she has HIV.
"You're consenting to the risk you might contract a potentially fatal disease," says Dawkins. "No one can consent to their own death, but the point made by the English Court of Appeal is we do all kinds of things involving risk. The court was saying if people in full knowledge of the risks engage in sexual activity the state really has no right to intrude into the bedroom."
The grey area in HIV is when someone has sex using a condom, but doesn't disclose that he or she has the infection.
"If someone did use a condom, then it's probably arguable it's not reckless disregard," says Auckland faculty of law professor Paul Rishworth - although he notes that in the United States where there are specific laws dealing with HIV, using a condom is not a defence. Here, however he thinks it may, depending on the facts of the case, provide some help.
"By wearing a condom you are reducing the risk substantially, but not reducing it to nil." He believes that may allow some facing criminal nuisance charges to argue they took reasonable care.
Dawkins agrees, pointing to a Supreme Court case in Canada which said that duty to disclose would not arise unless there was a significant risk of danger. On that basis having protected sex using a condom means the risk of HIV infection is low so that disclosure would not be necessary.
But not everyone agrees. Auckland barrister Frances Joychild gave a legal opinion on disclosure following the case of the late Peter Mwai. He made legal history here in 1994 when he was convicted of having unprotected sex with women while knowing he was HIV-positive. At the time Joychild said sexual partners were obliged to disclosed their HIV status whether they wore a condom or not - because even with a condom things could go wrong.
As the condom defence hasn't yet been tested in the courts, she says the right to know about whether a partner has HIV and make an informed choice before having sex remains a live issue.
But as Le Mesurier points out, such a case hasn't as yet come before the courts - probably because there's such as small chance of something going wrong when using a condom.
Dawkins says charges such as criminal nuisance are something of an anachronism and would have disappeared had a 1989 revision of the Crimes Act gone ahead. There, a new scheme of general endangerment offences was proposed, which could apply to HIV and other modern dangers, with a graduated scale of punishments.
Meanwhile HIV/Aids infections are increasing in the heterosexual community, and the safer sex message is clearly failing to to get through. In this environment, one can't help thinking a mandatory requirement to disclose HIV status - even if impractical in an age where casual sex is the norm - would be a useful guideline.
HIV cases in NZ courts
1994 - Kenyan musician Peter Mwai sentenced to seven years jail for having unprotected sex with five women and infecting two with HIV. Deported in June 1998 having served four years in jail here, Mwai died in Uganda in September 1998.
August 1999 - David Purvis, a 31-year-old Pakuranga invalid beneficiary, sentenced to four months jail for committing a criminal nuisance by having unprotected sex with another man. Pleaded guilty.
2001 - Former male prostitute Christopher Truscott held in "secure" care (he has escaped many times) in Christchurch after being prosecuted in 1999 for having unprotected sex with four men.
September 2004 - Zimbabwean Shingirayi Nyarirangwe, 25, was sentenced to three years jail after pleading guilty in the Auckland District Court to four charges of criminal nuisance and three of assault.
October 2004 - Justin William Dalley, an unemployed 35-year-old of Lower Hutt, admitted committing a criminal nuisance by failing to tell a woman he was HIV-positive, knowing it could endanger her health. Sentencing on November 29.
* Email Chris Barton
Herald Feature: Health
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