A matter of trust: navigating HIV disclosure and the law within relationshipsadmin
A matter of trust: navigating HIV disclosure and the law within relationships
HIV Australia | Vol. 12 No. 1 | March 2014
By Amanda Jones and Indraveer Chatterjee
AMANDA JONES and INDRAVEER CHATTERJEE examine the intersection between HIV, public health law and relationships, and conclude that privacy protections are lacking.
Disclosure of one’s HIV-positive status can often be a difficult issue, particularly in the context of relationships.
Stigma militates against it, and the early stages of a relationship can be complicated enough without dealing with the misunderstandings that an HIV-negative partner may have around HIV.
However, normalising HIV within the broader community cannot happen without people with HIV being able to speak about their status openly and confidently.
The law has some utility here, in the slow creation of behaviour change, and through the provision of an effective mechanism to prevent breaches of privacy.
In most cases individuals entering a new relationship will want to disclose their status regardless of the law.
Disclosure can be beneficial in that it can serve as a way of accessing support.
However, it carries practical and legal implications – the increased trust and wellbeing that comes from the sharing of personal information is counterbalanced by the risk of rejection, and the vulnerability that a person with HIV may face from the abuse of that information.
Public health laws throughout Australia – sometimes openly, and sometimes by inference – encourage people with HIV to disclose at the inception of sexual relationships, despite there being little public health utility in such a position.
Paradoxically, having impelled disclosure, the law does little to then protect that information. The truth is that in private relationships, trust is the only effective protection in the abuse of confidential information.
Public health laws and disclosure of HIV
Most states and territories have public health laws relevant to people with HIV. Individuals with HIV, in the conduct of sexual relationships, are often either explicitly required or implicitly urged to disclose their status prior to sexual intercourse.
For instance, Tasmania requires a positive person to disclose their status to any sexual contact;1 NSW requires disclosure prior to sexual intercourse but it is a full defence to the charge if reasonable precautions are taken;2 and Victoria does not require disclosure.
Disclosure laws vary from state to state, and HALC has produced guides to disclosure for NSW, South Australia and Western Australia which can be referred to for additional information.
The laws are not necessarily straightforward. For instance, in NSW the relevant section that governs disclosure is s79 of the Public Health Act.
The NSW Act requires a person with HIV to disclose their HIV status to a new sexual partner unless they use reasonable precautions to prevent transmission.
Reasonable precautions usually refer to use of a condom and lubricant, although this has yet to be determined by the Courts.3
Taking reasonable precautions will constitute a full defence in NSW. It should be noted however, that disclosure laws vary depending on the state or territory that an individual lives in.
A person may be required to disclose their status under law and reasonable precautions may not be an adequate defence, depending on where they live.
As indicated above, while the law in NSW does not mandate disclosure of a person’s HIV status, at the very least it strongly pushes a person to disclose their status to new sexual partners.
The issue here then becomes that the law currently does not provide effective protection for individuals who do disclose their status.
Potential issues upon disclosing
In order to demonstrate potential issues upon disclosing your HIV status to a partner, below are some case studies from our practice.
While disclosure often results in acceptance and support, such acceptance and support may often be withdrawn upon the breakdown of the relationship.
We also set out any possible legal remedies, if any.
Dan and Bobby
Dan and Bobby have just entered a relationship with each other. Dan has not told his family of his HIV diagnosis as he is still coming to terms with it himself. Dan is HIV-positive, whilst Bobby is not.
Dan wants to be open and honest with him about his HIV status, so before having sex, Dan discloses his status to Bobby.
Bobby is initially taken aback but is happy that Dan told him that he was HIV-positive. Their relationship continues and Dan appreciates the emotional support from his partner.
Unfortunately, as the relationship continues Bobby starts becoming controlling and emotionally abusive. When Bobby is angry with Dan he will punish him by disclosing his HIV status to various friends, when he knows that Dan has not told them yet.
Dan is becoming increasingly hurt by Bobby’s disregard for his feelings and his personal health information. Since Bobby refuses to stop his behaviour, Dan eventually leaves him, which sends Bobby into a rage.
As punishment for Dan leaving him, Bobby instigates a campaign to embarrass Dan as much as possible.
He starts by creating a fake Facebook account and sending all of Dan’s Facebook contacts messages, disclosing Dan’s HIV status.
Bobby then emails all of Dan’s family telling them the Dan is in a homosexual relationship and is HIV-positive.
He then sends anonymous emails to Dan’s place of employment telling them that they should be careful since they work so closely with an HIV-positive man.
Dan is obviously devastated by this malicious behaviour and gross breach of his privacy, but what can he do?
Dan’s situation is complex, due to many issues. In a new era where social media is commonplace, issues of international jurisdiction become apparent. Sadly the answer is that there is not much Dan can do.
There are two pieces of legislation that deal with privacy issues, namely, the Commonwealth Privacy Act 1988 (Cth) and in NSW, the Health Records and Information Privacy Act 2002 (NSW).
These Acts predominantly focus on the handling of personal information by governmental and/or healthcare agencies. The Commonwealth Act does not apply at all to the collection, holding, use, disclosure or transfer of personal information by an individual.4
The NSW Act can deal with complaints against private individuals,5however, there is an exemption for privacy complaints made in connection with personal, family or household affairs, in relation to an individual’s health information.6
Since Dan’s breach of privacy is directly connected to his family or household affairs, Bobby would be exempt from a complaint being made against him.
At any rate, the prospects of success for a privacy complaint are very poor.
Dan’s only remedy would be to institute a civil claim against Bobby for breach of confidence, however these claims are slow and very costly and this area of law continues to be uncertain and is in an early stage of development. Its utility against an individual (as opposed to a media corporation) is debatable.
His last option may be to seek an Apprehended Violence Order (AVO) against Bobby that would prevent Bobby from a particular action, such as posting Dan’s private information online.
Obtaining admissible evidence of Bobby’s actions would be difficult, necessitating collection of witness statements of the actions.
Where anonymous accounts are used, demonstrating that the disclosure was caused by Bobby would be extremely hard.
Courts are often reticent to be involved in ‘private’ disputes, particularly where there is no overt violence.
Finally, such applications – if unsuccessful – can result in Dan being liable for Bobby’s legal expenses.
Even with an AVO, Bobby could easily use fake social media accounts to harass Dan. There is little to nothing that can be done to resolve Dan’s privacy issues.
Jeff and Rachel
Jeff and Rachel have been married for ten years and are now going through a bitter divorce.
They have two children and are in the middle of court proceedings to determine whom the children will live with.
Prior to getting married Rachel was diagnosed with HIV. Jeff was aware of her status throughout the entire duration of their marriage and was accepting of it.
Now that they are getting divorced Jeff has decided to raise the issue of Rachel’s HIV status during the proceedings, for a tactical advantage.
What, if anything, can Rachel do?
Unfortunately for Rachel, there would not be any legal remedies available to her during the proceedings.
Legal causes of action do not generally lie against individuals in relation to evidence they give in court.7
The pressure of having her diagnosis discussed in court and being examined on it may well distress Rachel.
It could result in other family members or friends who are called to give evidence during the proceedings learning of her diagnosis.
At best, Rachel could request a suppression order at the end of the proceedings so that her HIV status is not referred to in any published materials but it would be extremely difficult to restrict its discussion during trial, even if its relevance is tenuous at best.
The law thus provides little to no protection around privacy breaches in interpersonal relationships; once an individual’s privacy is breached, there are few effective and practical remedies available.
Many would argue that except where there is coercion to disclose HIV status, this is as it should be – that the law has no place in regulating issues faced by people with HIV in their personal lives.
This ignores the fact that, at present, the law does intrude into the personal affairs of individuals, but only to the detriment of people with HIV.
We believe that there should be legal remedies for the likes of Dan and Rachel.
The law should provide appropriate privacy protections for HIV-positive people so they may conduct their personal relationships secure in the knowledge that they have legal recourse should their status ever be used against them.
This can only assist in reducing discrimination and stigmatisation of people with HIV on a societal level.
1 s20(1)(b), HIV/AIDS Preventative Measures Act 1993 (Tas).
2 s79(1), Public Health Act 2010 (NSW).
3 HIV/AIDS Legal Centre (HALC). (2008). Disclosing Your HV Status, A Guide to Some of the Legal Issues. HALC, Sydney. 3.
4 Privacy Act 1988 (Cth) s16E(a)(b).
5 Health Records Information Privacy Act 2002 (NSW), section 42.
6 Health Records Information Privacy Act 2002 (NSW), section 14.
7 For instance, defamation claims cannot be taken; see s27 Defamation Act 2005 (NSW).
Amanda Jones and Indraveer Chatterjee are solicitors at the HIV AIDS Legal Centre (HALC). They have an interest in the role of the law in the realisation of human rights.
The opinions expressed in this article are those of the authors, not necessarily reflecting the views of HALC.