Your responsibilities

Legally, if you have HIV you may now be held responsible and risk prosecution if you pass on HIV to an uninfected person. If you have HIV and want to avoid prosecution then it is a good idea to know your legal rights and responsibilities.

You might think that someone having unprotected sex must realise the risk they’re taking, so whatever happens is their responsibility. But the law says the person who does not have HIV cannot consent to unprotected sex unless this decision is informed. If they haven’t been told their sexual partner has HIV their actions are not made with informed consent. Only when the partner who has HIV says that they have HIV can the uninfected partner legally consent to the risk of unprotected sex.

If you have HIV then telling sexual partners before sex that you have HIV and/or using condoms for anal or vaginal sex would be enough to protect you from prosecution.

Even if you had unsafe sex years ago, before it was a crime to pass on HIV, you can still be held responsible. There is no time limit after which a case cannot be brought. Future cases may involve sex from even longer ago than five years. People could be prosecuted for sex they had back in the days when no one knew it was a crime in the UK to pass on HIV.

Knowledge of HIV status

It may be a reasonable defence in court to say that you did not have any reason to suspect you might have HIV. But in one case someone was prosecuted even though they’d never had an HIV test. The law says you can be prosecuted if you ought to have known or suspected you had HIV. This is especially true for those from groups with a high risk of being infected with HIV, such as African people, gay men, injecting drug users, haemophiliacs and sex workers.

Staying untested to avoid prosecution will not necessarily safeguard you from the law and could have very bad consequences for your health. The longer someone’s HIV infection goes undiagnosed, the worse their immune system is affected, until it can end up too badly damaged to benefit from HIV treatments.

If you have HIV and lied to the person you had sex with, or said you didn’t know you had HIV, then this might make the judge give a harsher sentence. This is because you actively deceived your partner. If someone with HIV encourages their partner not to use condoms, then this may also lead to a harsher sentence.