A HIV positive man in has been jailed for more than two months in the ACT after a high profile public prosecution, even after the magistrate admitted that it is impossible know if unprotected sex had ever taken place. Magistrate Burns turned back the clock on many years of experience and tax payer funded work in HIV prevention and management and used an antiquated Australian law from a time when an HIV diagnosis was certain death, to criminalise, stigmatise and discriminate against current sex workers living with HIV.

This year at the AIDS2008 International HIV conference in Mexico, a large number of delegates called for worldwide decriminalisation of people with HIV, claiming that the criminalisation forces people with HIV underground and increases resistance to testing which, in turn, increases the rates of HIV transmission.

In ACT, as a direct result of this years high profile prosecution, we have seen the local sex workers fear of testing increase, with the regularly monthly outreach clinics figures dropping from 40 per month to 2 per month, as a direct result of this case. This was reported to the Attorney General, Simon Corbell, a week prior to the sentencing. At that time Corbell admitted "..we know that with appropriate safe-sex measures in place, the risk of transmission is negligible.".

There has also been much written about best practice for public health policy in relation to the management of HIV, with the ACT only recently signing the "National Guidelines on the management of people with HIV who place others at risk". This document also recommends using criminal prosecutions as a last resort and only for cases of serious intentional transmission.

The rationale for this approach has been highly researched in Australia with the understanding that HIV cannot be eliminated, it's here to stay and we all need to learn to live with it. This means that for casual sex, including sex work, all people involved need to assume that everybody is, or could be, HIV positive. This is true whether they know their status or not, as many do not yet know they have HIV.

Therefore, it is far more dangerous to give the impression that a certain sector of society is HIV free, as this will increase the incentives to forego safe sex. Couple this with harsh penalties for people who take steps to learn their status, it creates a dangerous situation where HIV can thrive and transmission rates skyrocket.

Research has been done throughout the world that supports this, taking into account the many different country's experiences in sex industry settings and amongst gay men. Magistrate Burns claimed his judgement was in the interest of public health, however his evidence for this claim is now so out of date, it's negligent at the very least.

The best public health outcome would have been to drop all charges and remind ACT residents that people with HIV exist everywhere, and the only effective strategy for Australians to protect themselves is to use condoms and water based lube.

I know people are sick to death of hearing the safe sex message, but the alternatives are far scarier, and that would be having untested, undiagnosed and unchecked HIV infections running rampant in people who are too scared to get tested and claim to others that they have never tested positive to HIV.

Link to SX publication of this article

Kane Matthews is the author of the report The National Needs Assessment of Sex Workers who live with HIV, published by Scarlet Alliance