Having a great time in bed, get an STI instead – criminal consequences for offenders transmitting diseases in the Australian Capital Territory
Horror stories have appeared around the globe in relation to unsuspecting persons being infected with serious sexually transmitted infections (“STIs”). It is the stuff of nightmares – waking up and realising you have been put at risk of infection with a (sometimes) incurable disease. In the majority of cases, both parties may be entirely unaware there is a risk of transmitting an STI, or that they even have one. However, when transmitting an STI becomes intentional or reckless, the law gets involved to prosecute those transfer their disease.
On 10 May 2017, the High Court of Australia in Aubrey v The Queen  HCA 18 held that the act of infecting another individual with a sexually transmitted infection falls within the meaning of ‘maliciously inflicting grievous bodily harm’ under s 35(1)(b) of the Crimes Act 1900 (NSW). The High Court overturned the decision in R v Clarence (1888) 22 QBD 23, and held that grievous bodily harm not require the production of immediate physical injury – meaning sexual transmission of a disease can indeed amount to infliction of grievous bodily harm.
In the Australian Capital Territory, intentionally inflicting grievous bodily harm attracts a maximum sentence of 20 years imprisonment, and recklessly inflicting same 13 years imprisonment pursuant to the Crimes Act 1900 (ACT). Whilst intentionally or recklessly transmitting an STI is certainly an offence in the Australian Capital Territory, there do not appear to be any reported decisions where a Canberra resident has been charged with inflicting an STI as grievous bodily harm. The definition of grievous bodily harm in the Australian Capital Territory requires the injury to be “any permanent or serious disfiguring of a person”. In order to constitute grievous bodily harm, there must be “really serious injury”. This suggests that, should such a charge be proffered in the Australian Capital Territory, it would likely be an incurable STI such as hepatitis B, herpes simplex virus (HSV or herpes), HIV, and human papillomavirus (HPV).
The closest similar prosecution in the Territory was in 2008, where a Canberran male prostitute pleaded guilty to a similar offence, being providing a commercial sexual service whilst knowing he suffered a sexually transmitted disease contrary to section 25 of the Prostitution Act 1992 (ACT) (now renamed the Sex Work Act 1992 (ACT). This offence carried a maximum penalty of 50 penalty units, 6 months imprisonment or both. He was sentenced to 2 and a half months imprisonment.
It is perhaps understandable where a prosecution is brought in relation to deliberate or malicious transfer of an STI. What is not appropriate is where a person faces criminal charges and, by virtue of their STI, is treated differently or more harshly. In August 2018, a Brisbane man was charged with assault after spitting in the fact of a security guard. After the prosecution alleged the man had told the bouncer he was HIV-positive, the charge was upgraded to assault occasioning actual bodily harm. This was despite HIV not being capable of being transmitted via saliva, and there being no suggestion the bouncer contracted HIV. The reasoning behind such prosecutions appears to be that if you have an STI, you are an infected, undesirable person.
The High Court of Australia has made some comment in relation to whether, simply by virtue of having sex whilst diagnosed with an STI, a person intends to infect any person they engage in sexual intercourse with, with that STI. In Zaburoni, a Queensland man appealed his conviction of intentionally infecting his partner with HIV, because the prosecution could not prove he intentionally transmitted his disease. The High Court held that simply because a person has HIV and engages in sex, this does not automatically mean they intended to transmit their disease. A mere likelihood that an STI may be transferred cannot be substituted for proof of an accused’s intention to cause or bring about that action. Defendants subject to these charges should certainly keep Zaburoni in mind as a defence to intentionally inflicting grievous bodily harm.
With the Australian Capital Territory being the only Australian jurisdiction to protect all sex workers from discrimination on the grounds of their occupation, steps have been taken towards removing stigma and discrimination surrounding those suffering an STI. Section 25 of the Prostitution Act 1992 (ACT) was repealed by the Prostitution Amendment Act 2018 (ACT). Instead, section 21 of the Public Health Regulation 2000 provides it is an offence for any individual to fail to take reasonable precautions against transmitting a ‘transmissible notifiable condition.’ This definition includes a number of STIs, including HIV. With calls now being made for the Australian Capital Territory to have its own Sex Health Week, the time appears ripe for further progress to be made in relation to destigmatising those suffering STIs.
 Dictionary, Crimes Act 1900 (ACT).
 Haoui v R  NSWCCA 209 at .
 Zaburoni v The Queen  HCA 12,  – .
 Discrimination Act 1991 (ACT), section 7(1)(m).