A Brisbane judge has ruled that a convicted rapist should not get a lighter sentence because of the anguish he went through after learning that his victim was HIV positive.

Phillip Donald Jason, 48, engaged in a sexual encounter with another man that began in a consensual manner, but when his victim asked him to stop, Jason refused.


After pleading guilty to rape, Mr Jason’s lawyer argued that his client was “obviously distressed and upset.”, and argued that the judge, when considering the sentence, should take into account the fact that his client had to endure six months of medical tests before learning that he had not contracted HIV.

Judge Fleur Kingham, however, viewed the choice to commit rape as being an entirely different matter to Mr Jason’s decision to engage in sexual activity without using a condom.

“It’s a consequence of him consensually engaging in unprotected sex,” she said.

Mr Jason who has a substantial criminal history was sentenced to two and a half years jail with parole available immediately. Having already served eight months in jail, a parole board will now decide if and when Mr Jason should be released.

Dr Wendell Rosevears who works extensively with both victims and perpetrators of sexual crimes, as well as providing medical care for for people living with HIV, says the judge’s comments are a timely reminder about personal safe sex responsibility.

“Although the uncertainty of wondering if you got HIV from an encounter is distressing, the Judge made an insightful comment showing that in consensual sex each person is responsible for their own safety in a preventive way and people can not just assume sexual infectivity status or blame HIV Positive People,” Dr Rosevear said. “I think respect for consent and owning safe sex responsibility is timely as a reminder.”

“The case is very relevant as sometimes it is common that consent can be assumed, especially with non-verbal communication. In this case it was acknowledged that it started out as consenting, but that changed. It is important to respect that ‘No’, means ‘No’ and ‘Stop’ means ‘Stop’. These words don’t mean to just ‘try harder’ or ‘ignore’ what the person is saying.”

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