All people in New Zealand have a legal duty not to endanger the life, health or safety of others. In law, this means that HIV infected people must take “reasonable precautions” to avoid transmitting HIV.

Reasonable precautions

Anal or vaginal sex without a condom carries a significant risk of HIV transmission. “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).  HIV infected people who inform their sexual partners they are HIV positive (disclosure) before having consensual sex will also avoid legal liability.

However, it is important to note that:

• even when there is disclosure but no condom is used, the risk of HIV transmission still exists, and consent can be disputed if alcohol, drugs or fear are involved

• even if using condoms fulfils one’s legal duty to a sexual partner, the moral expectation for HIV positive people to disclose to their sexual partners still exists

Legal consequences

If an HIV positive person has not taken “reasonable precautions” to avoid HIV transmission, he or she risks prosecution under s145 or s188(2) of the Crimes Act 1961. If HIV transmission did not result, he or she could be imprisoned for up to one year. If HIV transmission occurred, imprisonment could be up to seven years. If the court found that HIV transmission was intentional, there are more serious charges.

New Zealand Case Law

To date, there have been a number of people convicted in New Zealand for having anal/vaginal sex without using a condom and without disclosing their HIV positive status. In 2005, the first case was laid against a man who did not disclose his HIV positive status but used a condom for vaginal sex. He was acquitted. This case established that legally, disclosing one’s HIV status was not essential provided that a condom is properly used for vaginal intercourse. This has not been applied to anal intercourse but is expected to influence such a decision. 

HIV Disclosure

While the 2005 case considered that by using condoms an HIV positive person fulfils his or her duty to protect sexual partners from HIV infection, not disclosing one’s HIV positive status can have an impact on issues of trust and emotional expectations in a sexual relationship. Such disclosure is never easy but can be helped through support from your doctor, NZAF counsellor or HIV positive support groups.

A case before the courts at present concerns an individual who is alleged to have transmitted, or attempted to transmit HIV with the intent to do so. This case is unusual as the majority of people living with HIV take appropriate precautions to take care of their sexual health and their partners.

The NZAF has been chairing a working group of the National HIV and AIDS Forum in drafting a set of guidelines for use in the rare situation of a person living with HIV being unable or unwilling to take appropriate precautions to protect others from HIV transmission.

Disclaimer: The information contained in this brochure is based on the case law environment in New Zealand as at 31 May 2007. The NZAF does not guarantee the non-prosecution of HIV positive persons in criminal cases even when a condom has been used, as each individual case may be assessed by the police and the courts against other factors. HIV positive persons involved or who think they may be involved in such cases should seek expert legal advice.