New Zealand: Court of Appeal rules HIV non-disclosure is sexual assault

Update(s): 12/13th March 2012

The New Zealand Court of Appeal has ruled that otherwise consensual unprotected sex without disclosure of known HIV-positive vitiates consent, meaning that potential HIV exposure (non-disclosure without transmission) could well be upgraded from criminal nuisance to sexual assault in future criminal cases.

The ruling is the result of a long-running civil liability compensation suit from the female complainant in a 2005 New Zealand case. See my original post from 2009, below, for details of the case.

Although the ruling relates to a civil suit and not the criminal law, it provides "a really good steer" for police, prosecutors and judges to use the ruling in future criminal cases, according to the New Zealand Law Society's Jonathan Krebs, interviewed on Radio New Zealand about the case.

The ruling was reported today in The Dominion Post, and on TVNZ.

However, only Radio New Zealand's website reported the reaction of the New Zealand AIDS Foundation to this precedent-setting ruling that could mean that in the future HIV non-disclosure may be punishable by up to 20 years in prison.

The Aids Foundation says that a Court of Appeal ruling that says people with HIV could be charged with rape if they do not tell a sexual partner about their disease, is over the top.

In a precedent setting decision on Monday the Court of Appeal in Wellington ruled people with HIV could be charged with rape if they do not tell a willing sexual partner about their disease.

However, The Aids Foundation's executive director Sean Robinson says the law is adequate in dealing with people who did not disclose their disease.

Original post: 14th July 2009

The New Zealand Court of Appeal is to hear a civil liability case from the female complainant in a 2005 New Zealand HIV exposure case that has the potential to change the law and make HIV non-disclosure a more serious crime. The case centres around whether unprotected sex without disclosure vitiates consent, as it does in Canada. If it does, then HIV exposure (non-disclosure without transmission) could be upgraded from criminal nuisance to sexual assault.

According to a story from the NZ Press Association, the woman has been trying to get compensation for years following the 'distress' of having had unprotected sex with an HIV-positive man for four months. The woman did not test HIV-positive.

She was in Wellington High Court last week to ask whether she could appeal an earlier High Court decision upholding a previous District Court decision that agreed that the Accident Compensation Corporation's (ACC, the NZ Government's accident and injury compensation board) decision to refuse payment for mental injury was correct.

The woman behind this appeal was known as "Shannon" during the first (2004-2005) court case against 35 year-old Justin Dalley.

Although a second complaint led to the groundbreaking ruling that non-disclosure with condom use was not required in New Zealand, in this case Mr Dalley pleaded guilty to the charges of criminal nuisance for having unprotected sex with "Shannon" for four months without disclosing his HIV status.

He was sentenced to "300 hours' community work, six months' supervision and... [NZ]$100 reparation to ["Shannon"] to cover her counselling costs and expenses."

Mental injury caused by criminal nuisance is not covered under the Injury Prevention, Rehabilitation, and Compensation Act (which governs ACC payouts), but "Shannon" and her lawyers are pushing the boundaries of civil and criminal law by claiming "that the man's offending was also a criminal act of a kind that was covered by the IPRC Act, such as sexual violation or indecent assault."

Lawyers for the woman accepted that the district court was bound by an earlier decision, CLM v ACC, though that case never went as far as the Court of Appeal. The judge said that in that case, which dealt with similar issues, the High Court had ruled that it was not a criminal act of the kind contemplated because those acts required lack of consent. "In that case, as in the present, the sexual intercourse was consensual[, said Justice Jill Mallon]. The High Court concluded that under New Zealand law, as it presently stood, the non-disclosure by the man that he was HIV positive did not vitiate the woman's consent." The High Court judge said at the time that any change to the law in this respect was a matter for Parliament.

By allowing the appeal, Justice Mallon has also allowed for the possibility that HIV non-disclosure may become a more serious crime in New Zealand if the Court of Appeal rules in her favour. This appears to be "Shannon"'s ultimate goal. An article from TVNZ.com at the time of Dalley's 2004 arrest in what would become the condom ruling case highlighted that "Shannon" was trying to get NZ law changed to require HIV disclosure regardless of condom use.

Dalley's ex-girlfriend "Shannon" has been fighting for a law change so anyone with HIV has to disclose their status whether they practise safe sex or not. "I don't think anyone's got the right to decide to put someone else's life at risk and I think it's only fair that somebody should know all the details," she says.

Later, in an article published in the New Zealand Herald at the time of Dalley's 2005 sentencing, "Shannon" was said to be angered by the non-custodial sentence.

The woman, known only as "Shannon", said the judge's decision had sent a strong message to every HIV-positive person that Dalley's behaviour was acceptable. "I was willing to accept home detention but not this." She said she had been unable to work during the nine-month case and had lost about $30,000 in wages. Judge Behrens said the woman had discovered Dalley's condition after receiving a letter from someone who knew him. She was traumatised, lost her job and was unable to face friends.

Interestingly, the article also reveals that following the discovery that her partner was HIV-positive, she "had lied to Dalley and his family, telling them she was HIV-positive." It was that, along with Dalley's early guilty plea, which had resulted in his lenient sentence.

Given the hysteria surrounding the current 'HIV predator' case, which has included calls for public health and privacy law reform, it is entirely possible that the Court of Appeal might be more willing to reconsider whether non-disclosure of HIV status deserves to be upgraded to a more serious 'crime'.