If you know you are HIV positive, and you have sex without a condom without telling your sexual partner about your HIV status, and your partner acquires HIV as a result, it is possible you could have legal action taken against you.

This issue may affect how you approach your sex life after an HIV diagnosis. 

Several people in England, Wales and Northern Ireland have been charged with committing an offence because their sexual partners acquired HIV through sex without a condom, and they had not told them they were HIV positive. (The term often used in the law is ‘reckless’ transmission.) In Scotland, the law is different. As well as the possibility of being charged for passing on HIV in those circumstances, it is possible to be prosecuted for putting another person at risk of HIV infection, even if they don’t become HIV positive. (The term used for this in the law is ‘reckless endangerment’ or ‘reckless exposure’.)

Most cases come about because someone has made a complaint. Some people have been convicted and sent to prison. There have been many more arrests and investigations, some of which have lasted for many months. They have had a serious impact on the lives of both the accused and the people making the complaint.

The Crown Prosecution Service (for England and Wales) has produced guidance to help the courts decide if a crime has been committed and whether someone should be charged. The Crown Office and Procurator Fiscal Service in Scotland has done the same. These guidelines say that there is usually no case if:

• you didn’t know you have HIV or
• you told your partner you are HIV positive and
• you took reasonable steps to avoid passing HIV on to your partner.

Condoms, when used properly, provide excellent protection against HIV and most other sexually transmitted infections. Lawyers think that if you use condoms every time you have sex, and for the entire duration of sex, you would have a good defence if transmission did occur.

You are unlikely to pass on HIV if you have an undetectable viral load as a result of being on HIV treatment (that is, the level of HIV is so low it can’t be detected in your blood by tests most commonly used). If you are following your doctor’s advice in taking HIV treatment to reduce your infectiousness, that is also likely to be considered reasonable action to prevent HIV transmission. 

But neither of these defences have been tested in a court of law.

The law is also not clear on your liability if you use a condom and you notice that it breaks or comes off. Advice is that you should tell your partner that you have HIV if they do not already know and advise them to seek treatment called post-exposure prophylaxis (PEP). This is where a short course of HIV treatment is given to prevent HIV infection after someone has been exposed to the virus.

Ultimately, it is your decision when and whether to tell your sexual partners that you have HIV. You may want to consider whether the kind of sex you are having involves a substantial risk of HIV transmission. Anal and vaginal sex without a condom have the highest risk, but there is evidence that there is also a (much smaller) risk from oral sex. Properly used condoms can provide effective protection.

If you do decide to tell your sexual partners, think through how and when you will do this. In many cases, it may be fine. However, some people will not want to have sex with someone with HIV and in rare cases you could get an extreme reaction. It could be helpful to think in advance about what you will do if you are rejected, or if your partner responds in an unpleasant way (occasionally, people have been verbally or physically threatened or attacked). Staff at your HIV clinic or HIV support organisations can help you with developing techniques for telling partners about your HIV status. Talking to other people living with HIV about ways they have told partners and dealt with responses may also help.

Often, sex happens in the heat of the moment. You may not feel that there is an opportunity to mention that you have HIV, or your partner might not want to discuss it. You may also find that your partner initiates sex without using a condom. Think in advance about how you would respond to these situations. Don’t assume, just because your partner doesn’t want to talk about HIV or is willing or even eager to have sex without a condom, that he or she is also living with HIV.

Often HIV-negative people (or those who don’t know their status) expect people with HIV to tell them before they have sex. They will then assume that, because there has been no mention of HIV and they have had sex without using a condom, their partner is also HIV negative.

Just as people living with HIV have a responsibility to look after their own health and not to pass on HIV, HIV-negative people and people who don’t know their HIV status have a responsibility to look after their own health and to protect themselves from HIV. But, in the eyes of the law, the balance of responsibility is weighted more towards people with HIV.

If you are being investigated, or you think that someone may make a complaint against you, it’s important you get good advice and support from an HIV support organisation. You need to find an experienced lawyer straight away, before you make any statement to the police. In the UK, the Terrence Higgins Trust helpline, THT Direct, can help you find both these; you can speak to them in confidence on 0808 802 1221. You may also want to speak to THT Direct or another support organisation if you are thinking of making a complaint. You can find HIV organisations near where you are using our online e-atlas.

You can find more information on this topic on NAM's website. There is also useful information on the National AIDS Trust’s website.