ON February 16 the Perth district court sentenced a woman to six years in jail for transmitting HIV to a man—a sentence longer than that doled out to some one-punch killers in recent years. The transgender woman, who told the court she did not know she had HIV, will have to serve her time in a male prison. In this week’s SPEAKER’S CORNER, WA AIDS Council CEO DAVID KERNOHAN looks at the ramifications this verdict could have on the stigma surrounding HIV, and asks has justice been served?
IN the majority of cases heard before the magistrates and district courts there is a clear perpetrator and victim.
Sometimes, the dividing line between perpetrator and victim is not as easy to demarcate.
In the recent court case of C J Palmer, there are two victims. The young person who has contracted HIV and C J Palmer.
Both have particular personal challenges, the one to learn to live constructively and with dignity with a chronic illness and the other to live constructively and with dignity in a system that would seek to take these away from her.
Apart from the above, it is not my intention in this article to deal with the personal realm but to ask a broader question – has justice been served and at what cost?
Those within the community who are perhaps unaware of the advances in medical treatment for HIV may think that with a sentence of six years, justice has been served.
Yet, as I pointed out in an earlier article, retributive justice is only one aspect of justice. Justice has other strands to it, for example reconciliation as evidenced by the reconciliation tribunals in South Africa at the end of apartheid.
Another aspect of justice is education. Officials with the justice system would argue strongly that prisons have an educative role in educating prisoners for re-entry into the community after the sentence has been served.
Retributive justice is always the most expensive form of justice because it involves incarcerating people and employing staff to ensure the prison system remains coherent and not disintegrate into violence and riots.
With a six-year sentence and a minimum four-year non-parole period, have these other strands of justice been served? While acknowledging the young person may not want or be ready to consider reconciliation, does a six-year sentence allow for the possibility of this to occur should the parties so wish?
It is more challenging for this to happen within the prison system. What about the educative aspect of justice?
What skills does a woman learn during four years in a male prison? What programs are in place for a woman in a male prison that will assist her re-integration into the wider community once the four-year period is over?
Therefore, I ask again – has justice been served? I would argue strongly that justice has not been served for several reasons. The possibility of reconciliation or at least rapprochement between the parties has been made more difficult.
The educative aspect of justice is compromised for a woman in a male prison. The economics of justice is not sustainable. As a community our taxes will spend close to one million dollars for one person for four years when they could be accommodated within the community for far less.
The United Nations and successive Australian governments are all agreed HIV is no longer a criminal matter but a public health issue.
This case highlights the need for governments to rescind and remove outdated laws such as the criminalisation of HIV and ensure that public health policy and laws do not contradict each other. It also highlights the need for the judiciary to keep abreast of current medical opinion and scientific knowledge and where necessary tread lightly until laws are updated to reflect current understanding rather than handing down sentences that can potential reinforce stigma and social isolation.