Background to criminal prosecutions

Recent high profile court cases have put the spotlight on the sexual behaviour of people living with HIV. Research shows that the majority of people diagnosed with HIV are very concerned that they don’t infect others. They go to considerable effort to put others at as little risk as possible. This is despite the fact that many do not find using condoms easy and that telling others you have HIV can make people vulnerable to discrimination, rejection, gossip and other bad reactions.

Who is ‘responsible’ for preventing HIV infections?

Many think that the uninfected person is responsible for protecting their own health through ‘safer sex’ and condoms. Many people think that responsibility for this is (or should be) shared between two sexual partners. What’s now become clear is that the law says responsibility lies with the person who is living with HIV. If HIV is transmitted it is the person with HIV who can be prosecuted.

It would, however, be unwise for people who have not been infected with HIV to believe that they can always rely on their sexual partner (and the law) to protect them from HIV infection. Uninfected people still need to be responsible for protecting their health.

Important considerations

It is important to realise that:

• The reality is that many people with HIV do not know they have it, so cannot tell the people they have sex with. 
• For many reasons, not all of those who do know will tell their partners or use condoms.
• Many people do things forbidden by law. The law will not stop people with HIV not mentioning or lying about their HIV status if they decide that’s what they will do.
• Unless absolutely sure a partner does not have HIV, condoms offer the greatest protection against infection if used properly for each act of unprotected sex.