The Wellington District Court, New Zealand, has ruled that HIV-positive people don't have to disclose their condition to their sexual partners if condoms are used.
Justin Dalley was charged with criminal nuisance after not disclosing to his female partner his HIV positive status before they engaged in protected vaginal sex and unprotected oral sex. However, Judge Susan Thomas today dismissed the charges of criminal nuisance against Dalley, in a reserve decision following a two-day hearing in August.
The judge asserted that Dalley's legal duty was to take reasonable precautions to avoid transmitting the virus, which he had done by using a condom during intercourse and not ejaculating during oral sex. She added that although people might expect a sexual partner to inform them of their HIV status, and there could be moral duty to do so, it was not required by law.
The New Zealand AIDS activists have welcomed the decision and said common sense had prevailed, emphasizing the use of condoms as the best strategy for avoiding the HIV virus. According to the New Zealand Aids Foundation, the best strategy for avoiding HIV during anal or vaginal intercourse is the consistent and proper use of condoms.
Relying on HIV-positive people to tell you, and assuming that unprotected intercourse is safe if HIV is not mentioned, is a much riskier strategy, especially as majority of people with HIV in don't know they have it, and so can't tell. The decision taken, thus, highlights that it is protected sex, not disclosure that kept people safe.