Sex, HIV disclosure and the law: What you need to know
You can have a good time without getting into trouble with the law. Here are common situations HIV-positive people might find themselves in and some advice on how to handle them. By Lance Feeney.
To help people living with HIV navigate the sometimes tricky issue of disclosure in a range of sexual and drug using situations, solicitors Jennifer Smythe and Indraveer Chatterjee from the HIV/AIDS Legal Centre and Positive Life NSW are developing a new plain language resource called Sex and HIV Positive People - Having a Good Time without Getting into Trouble.
The resource describes some common situations that HIV-positive people might find themselves in and offers professional advice. Here are some excerpts:
"I had sex with a guy but didn’t tell him that I’m positive"
This shouldn’t be a problem as long as you practices safe sex. While the law in NSW requires you to disclose your HIV-positive status before sex, it is a full defence if you took “reasonable precautions”. Charges are rarely laid under this section of the Act and Courts have not had a chance to say exactly what “reasonable precaution” are, but condoms and a water based lube should do it.
"This just happened last night and we didn’t practice safe sex. I feel really bad because I normally always use condoms."
This is a tricky situation. If you tell him straight away, then he will be able to go and get PEP, or tell you that he is HIV-positive too. If he gets PEP in time (up to 72 hours after exposure, but the sooner the better), the chances of him seroconverting are pretty low, and even if he does, it will really help in a worst case scenario of criminal charges being brought against you.
"But I’ve got an undetectable viral load!"
If you’ve got an undetectable viral load, then the odds of infecting someone with HIV are low. This means that criminal charges are unlikely. However, we would not recommend relying on your undetectable viral load as being a “reasonable precaution” as Courts are generally rather behind the times in matters of this sort. Eventually, someone will try this defence and then we will have a better idea how the Courts will view it. You probably do not want to be the test case.
"Ok, but there’s another guy I had sex with months ago who keeps asking if I’m positive."
If you had sex months ago, then it is much too late for him to get PEP now. You don’t have to tell him anything now, and you should be aware that anything you do tell him could be used in proceeding against you. However, you could tell him that if he is worried about his health, then he should get tested.
"Actually, we’re still hooking up now and then…"
If you’ve been having unprotected sex with him, without disclosing you’re HIV positive, then you could be in trouble. This is particularly the case if he’s been asking you whether you’re positive. If he has contracted HIV, then you may face charges under the Crimes Act. Repeatedly lying to someone about your HIV-positive status whilst having unprotected sex with them, is the type of behaviour that the Courts are likely to consider as “reckless”. The penalty for recklessly infecting another is up to seven years in jail. Although few people have been convicted of this offence, those that are convicted are almost always imprisoned. In addition, if he’s having unprotected sex with you because he thinks you’re negative, he’s probably also having unprotected sex with other guys, because he thinks he’s negative. All these guys are at risk.
"Criminal charges? Jail? How do I make sure it doesn’t happen to me?"
Always practising safe sex is the best way to make sure this never happens to you. Criminal charges generally do not result where you do your best to ensure that you do not hurt someone else. Practising safe sex shows you are being careful not to infect others. Also these charges are very rare, and usually only happen where there has been evidence of wrongdoing, such as lying about HIV status, faking HIV test results or infecting someone through sexual assault.
There is a requirement to disclose HIV status under the NSW Public Health Act 2010. The Act says that you have to tell your partner before you have sex if you have HIV, or take reasonable precaution to prevent transmission. “Reasonable Precautions” is likely to mean the correct use of condoms and lube. You could still be charged for non-disclosure, but the use of “Reasonable Precautions” would be a defence against the charge. The definitions of what “Reasonable Precautions” are have yet to be decided by a Court of Law in NSW. But, the HIV/AIDS Legal Centre (HALC) and Positive Life NSW think that the correct use of condoms and lube is sound responsible practice. Undetectable viral load on the other hand would be a more risky proposition and depends upon a range of contextual variables.
Positive Life NSW encourages all people with HIV (PLHIV) to be upfront and open about their HIV status in an endeavour to normalise HIV infection and combat the impact of HIV related stigma and discrimination – which is more likely to flourish in an environment where PLHIV remain silent and hide their status from others. While acknowledging that HIV disclosure complies with the requirement of the NSW Public Health Act, we also accept that for some people, disclosure will be difficult and assert the right of PLHIV to self-determination and non-disclosure. However, if you are HIV-positive and you choose not to disclose, you need to be effectively using condoms and lube. Anything less could land you on the wrong side of the law if someone brings a charge against you.