Sex and the law

Condoms

From the cases brought to court so far it seems that you cannot be prosecuted if you have used condoms for sex 100% of the time. It has therefore been suggested that consistent condom use should be what people with HIV are trying to achieve. If there were acceptable reasons why condoms weren’t used or if a condom broke or came off then this would probably be viewed sympathetically. Using condoms and trying to stop HIV being passed on could be taken as a sign that you are not being ‘reckless’. But so far this has not been tested in a court so there is no guarantee you wouldn’t be prosecuted, especially if you had not told your partner you had HIV.

If a condom breaks or comes off and you tell your sexual partner you have HIV this would probably make a prosecution less likely, especially if you told your partner about ‘post-exposure prophylaxis’ (PEP), although this has not been tested in court. PEP is an emergency treatment that might stop HIV infection as long as it’s started quickly (within 72 hours) after HIV has entered the body. However, PEP can be hard to get, the side-effects mean some people have to stop taking it and it does not always work, so you could still be risking prosecution if the other person tried PEP and still became infected with HIV.

If you told your partner that you had HIV and they decided to go ahead with unprotected sex and became infected as a result then you would not be prosecuted. As the partner without HIV knows you are infected this means they have agreed to any risk in unprotected sex. If they become infected the law should not get involved.

Oral sex

There have been no prosecutions involving oral sex. As the risk of infection from oral sex is much lower than anal or vaginal sex it is hard to imagine a case successfully being brought before a court that involved only oral sex. But to be totally free of risk from prosecution you would need to tell sexual partners that you have HIV before oral sex.

Viral load

An undetectable viral load (in the blood) means you still have HIV in your blood but in quantities too low to measure. Levels of HIV in semen or vaginal fluids could be higher than have been shown in a test on someone’s blood. Even with undetectable viral load it is possible to infect others, so the risk of prosecution is still there.