In 2005, a legal precedent in New Zealand was established that the use of condoms discharged the legal duty on a person living with HIV to take ‘reasonable precautions’ to keep others safe from HIV transmission. This was ground breaking as it recognised the risk of HIV transmission is from not using condoms and not whether or not HIV status had been disclosed.“Reasonable precautions” to avoid sexual transmission of HIV include only engaging in sexual activities that involve a very low or no risk of transmission (e.g. oral sex, masturbation and kissing, using condoms for anal and vaginal sex).

However, it is worth noting that while a person living with HIV may avoid legal liability if they inform their partner of their status (disclosure) before sex, the partner must give explicit consent. If consent is not given, or considered to be given under duress, the person living with HIV might still be liable for prosecution and conviction, where no condoms have been used, even if there is no transmission of the HIV virus. For example consent can be disputed if alcohol, drugs or fear are involved.

It is very important to note however, that it is not the known or unknown HIV status of a sexual partner that puts the other at risk of HIV transmission – it is whether or not condoms and lube are used.

It’s also worth remembering that condoms and lube should be used every time you have sex, and both sexual partners share the responsibility for keeping themselves and each other safe from STIs. Relying on some to disclose the fact that they are living with HIV is unwise, as not everyone living with HIV is aware of their status.

You can find out more about HIV and criminal prosecutions on our Policy page.

If you or anyone you know is worried about any sexual encounter, the NZAF provide free, confidential testing for HIV, syphilis and other STIs. You can contact the NZAF here, or by calling 0800 80 AIDS (2437).

(NZAF Note - this answer was edited for clarity on 15 May 2010.)

- NZAF official response

A HIV test doesn't test for the virus in your blood - it tests for antibodies for HIV. It is not possible to tell if somebody has contracted HIV immediately, as sometimes these antibodies can take up to three months to appear in your blood. This is called the window period.

If you're worried about your HIV status, it's important to talk to someone. Your nearest NZAF Centre can talk with you about all the issues you face, and talk to you about testing. The HIV test the NZAF uses is called the FASTest, and gives results within twenty minutes (although we ask you to take an hour out of your schedule for the appointment).

It's really important to use condoms and lube every time you have sex - they're the best way to protect yourself and your partner from the HIV.

- NZAF official response

You can get free condoms from the NZAF.

- NZAF official response

It's important that you use condoms correctly, to make sure they don't break. Firstly, before you put on a condom you should make sure it's use-by date hasn't passed. Condoms should never be stored near a source of heat, as this can weaken the latex. When you're using a condom, you should always use water-based lube. Oil-based lube (for instance Vaseline or lotion) can weaken the latex used to make

HIV can be present in the mucous lining of the anus; if he’s not wearing a condom, the virus can enter a man’s body through the end of his penis or the inner folds of his foreskin. If you're concerned about any sexual act, it's best to contact your nearest NZAF Centre to book a test.

- NZAF official response