HIV claim heads to High Court

A woman is appealing to the High Court to get ACC compensation for mental injuries she suffered when she found out her lover had HIV.

Her ex-partner was sentenced to nine months in jail for criminal nuisance in 1999 after he kept from her, for nine months, the fact he was HIV positive.

The woman escaped infection, but has since been diagnosed as suffering from post traumatic stress disorder as a result of the ordeal.

However ACC won't compensate her because criminal nuisance is not a crime listed in its schedule for compensation.

Now the woman's lawyer, John Miller, is seeking a law change that would pave the way for others to also seek compensation.

Mr Miller, an ACC law specialist and university professor, unsuccessfully appealed against ACC's decision to deny compensation. His argument was that a person's consent for sexual intercourse is nullified when their partner does not reveal they have a deadly contagious disease. The sex, in turn, becomes an indecent assault.

Expecting the district court would rule against him, he is appealing to the High Court where a win would set a legal precedent paving the way for others in similar situations to also seek compensation.

In Canada and the United States a person is not considered to have given proper consent to sex if their partner has hidden the fact they have HIV. They can then be charged with sexual violation.

Mr Miller said police here usually charged people with criminal nuisance for failing to declare they had the disease.

"That's okay for getting a conviction but it leaves the person under accident compensation without a remedy."

In his decision on the first appeal, Judge DA Ongley said Mr Miller's argument could cover other infections or even pregnancy. But Mr Miller said consent would be in doubt only if the information being withheld was life threatening.

"You would want to know before you kiss someone if your life is going to be threatened by this kiss."

He expected a High Court hearing within three months.


- HERALD ON SUNDAY