Australia: Sydney husband gets 4 1/2 years after pleading guilty to infecting wife

A 38 year-old man who previously pleaded guilty to a charge of "maliciously inflicting grievous bodily harm" (reckless HIV tranmission) after his ex-wife filed a complaint, has been sentenced to "four years and six months full-time jail with a non-parole period of three years, meaning he will be eligible for release in April 2012 at the earliest" by Judge Jennifer English in Sydney.

For more on the case, see this blog entry from last June. The same story from the AAP ran in almost every Australian paper today, but there is no information explaining why sentencing took almost a year, when it was originally scheduled for last August; nor how it is possible that he might have infected her "some time between January 1994 and December 2003" when the child she bore was diagnosed with AIDS in 1998.

Australia: Sydney man pleads guilty to criminal HIV transmission

A 37 year-old man who apparently knew he had been living with HIV since he was 18, has pleaded guilty to "deliberately and maliciously" infecting his wife with the virus, and will be sentenced in August - he faces up to 25 years in prison.

According to reports, he was 24 when he and his wife - then 16 - first met, and he did not disclose his HIV status to her. His wife apparently only discovered her HIV status when the couple's youngest child was diagnosed with AIDS; the child subsequently died.

There are some important, worrying holes in this story: in particular, she had two children before the youngest one, so was the wife ever screened for HIV during any of her previous pregnancies, and why not for her third?

The story says he infected her "some time between the [sic] January 1, 1994 and December 31, 2003," but if their child was diagnosed with AIDS in 1998, surely the prosecution must have claimed he infected her before the child was born?

Since he has pleaded guilty, any further details are only likely to emerge during his sentencing hearing on August 1st.

The story received widespread coverage throughout Australia last week, although they are all based on one report with one of two headlines: 'I gave my wife HIV' or 'Man deliberately gave child and wife AIDS'.

I gave my wife HIV
Article from: The Daily Telegraph
May 31, 2008 12:00am

A 37-year old Western Sydney man has admitted he deliberately and maliciously infected his wife of more than ten years with the deadly HIV virus.

Ryan James Montgomery pleaded guilty to one count of maliciously causing grievous bodily disease in Parramatta local court yesterday.

Montgomery said nothing and appeared emotionless during his short court appearance.

The charge carries a maximum sentence of 25 years jail.

Montgomery will be sentenced in Penrith district court on August 1.

Montgomery, who is on a disability pension, infected his long-time partner and mother of his three children with HIV some time between the January 1, 1994 and December 31, 2003.

His partner only found out she had contracted the disease when the couple’s youngest child was diagnosed with HIV in mid-1998. The child died in September 2001 from and AIDS-related illness.

Montgomery and his former partner started dating in 1994 when he was 24 and she was 16. The first time they slept together, the victim claims she asked him to wear a condom, but Montgomery refused, saying “Do I look like I’ve got AIDS?”.

Montgomery had been aware that he carried the disease since he was 18.

Montgomery was arrested on December 6 and was originally denied bail because he was considered a danger to the community because of the attitude he displayed about infecting his former partner with the disease,

Montgomery was supported in court yesterday by his mother and current partner.

Australia: New booklet clarifies that disclosure – even with condoms – is mandatory in NSW

A new booklet, 'Disclosing your HIV status', produced by the New South Wales HIV/AIDS Legal Centre (HALC) highlights that both public health and criminal laws mandate that diagnosed HIV-positive people in NSW must disclose their HIV status prior to any kind of sexual contact, even when condoms are used.

Under the NSW Public Health Act 1991, if you are HIV positive you are legally required to disclose your HIV status to a person before you have sex with them. Sex in this context refers to any form of vaginal or anal intercourse or oral sex.

It is no defence that the other person should have asked you about your HIV status or that they should have worn a condom or practised other safe sex procedures. You are still legally required to disclose your HIV status.

It is no defence if you wear a condom or practice other safe sex procedures without telling them of your HIV status. It is no defence either, if the social situation makes it difficult for you to disclose, for example if you have anonymous sex.

Because of the nature of this type of offence, there may be problems of proof as to whether you disclosed or not. Often it can be one person’s word against another.

The penalty for non-disclosure under the Public Health Act is a
maximum fine of $5,500.

There are also more serious offences relevant to non-disclosure of HIV status. Under the NSW Crimes Act 1900 it is a crime to deliberately, recklessly or negligently transmit or attempt to transmit HIV. This carries a sentence of up to 25 years imprisonment. Or, the crime of grievous bodily harm may be applied which carries up to 7 years imprisonment.

These criminal offences are based on the principle that an HIV positive person has the responsibility not to infect or put another person at risk of infection. This is a complex area of law. For more information about criminal charges relating to HIV infection of others, contact the HIV/AIDS Legal Centre (HALC).

Under civil law a person may also be sued for damages by an infected person, for deliberately, negligently or recklessly infecting them.

Wearing a condom or using another safe sex procedure would be a strong defence against the criminal charges or civil claim. Although it’s the law, the HIV/AIDS Legal Centre (HALC) doesn’t believe you should be penalised for non-disclosure if, when you had sexual intercourse, you practised safe sex. For more information on this issue, contact HALC.

The story alerting me to the existence of the booklet, from Sydney's gay newspaper, The Sydney Star Observer, is below.

I have also obtained a pdf copy of the booklet from HALC, and have made it available for download for seven days (until May 20th 2008) from here.

After that date, you should contact HALC directly for a copy.

HIV LAW: CONDOMS ARE NOT ENOUGH
by Harley Dennett
Sydney Star Observer - Issue 917 - Published 8/05/2008

Anonymous sex and condoms are no defence for failing to disclose one’s HIV status to a person before having sex, a new booklet launched this week by High Court Justice Michael Kirby advises.

But almost anyone else - like an employer, health insurer, sporting team - doesn’t need to know, according to the new publication by the HIV/AIDS Legal Centre, aimed at clarifying contradictory public health and disclosure laws in NSW. Several men were charged under similar laws in other states last year.

One set of public health laws, with a maximum penalty of $5,500, allows no defence for not disclosing before anal or oral sex contact occurs, even if the situation makes this difficult. But reckless non-disclosure under the Crimes Act can carry a 25-year sentence, but under that Act safe sex could be used as a defence.

“There are some circumstances that the law requires you to reveal it, like before sex and in certain professions or sports like boxing, but by and large you don’t have to reveal your status,” Kirby said at the launch on Tuesday.

“That’s a good thing because there are no really efficient privacy laws in Australia to protect everybody. Even in our relatively enlightened country the fact people know you are HIV-positive can sometimes be a bad thing for a person to live with.”