Criminalisation

Whose Responsibility?

Many people have heard the saying ‘it takes two to tango’, this means that it is the responsibility of both partners. There is a huge debate about who’s responsibility it is to prevent HIV infections. Some people believe that it is the responsibility of the HIV positive partner to tell their sexual partners about their status, other believe that is all our responsibility to make sure that we have sex that is safe enough for us.

It has become clear that ‘in law’ the responsibility for safer sex lies with the person who is living with HIV. This is because if HIV transmission occurs then it is the person who is living with HIV that can be prosecuted.

Uninfected people still need to take some responsibility for protecting their health. It is unrealistic and unwise to believe that all of your sexual partners will either know or disclose their HIV status.

Your responsibilities if you are HIV positive

If you are HIV positive you should think about your responsibilities, especially as you could be prosecuted for transmitting HIV if you do not use a condom. If you have not read our ‘Criminalisation – The Background’ page you should read it after this page.

You may think that if your partner chooses to have unprotected sex that they are aware of the risks that they are taking or have the same HIV status as you. The law says that if someone is not informed about the positive HIV status of their partner they cannot make an informed choice about having unprotected sex. If you have told your partner about your HIV status and they choose to have unprotected sex with you then you would be protected in law. This would mean that they would have had what is called ‘informed consent’.

Knowledge of your HIV status

If you have not tested or have no reason to believe that you have an HIV positive status this may be a reasonable defence against prosecution of transmission; although in one case someone was prosecuted even though they had never tested because the law states if you ought to have known or suspected your HIV positive status then you should have taken reasonable precautions. This is especially true of groups where there is a high risk of infection including gay men, African people, sex workers and injecting drug users.

Staying untested may not protect you from the law and could also damage your health. The longer that someone is HIV positive and untested then the more damage the virus can do to their body.

In conclusion

It is important to think about your responsibilities for transmission of HIV, but do not allow these to spoil your sex life. I you need a reminder of the key points we have made a small list below and if you want to talk to someone about these issues please feel free to call the Positively Sexy office, or send an email.

Key Points

• Think about disclosing your HIV status before having sex, if you do not wish to do this or it is not appropriate always use a condom. The law states that if you are HIV positive then it is your responsibility to have safer sex.

• If you don’t use a condom or have a condom breakage you should inform your partner of your positive HIV status and help them to access PEP (Post Exposure Prophylaxis)

• Ignorance about your status cannot be a legal defence. Especially if you are in a ‘high risk’ group.

• If you find yourself in a situation where you think you may be at risk of legal action for transmission of HIV get some legal advice as soon as possible. Any of the projects listed in the services pages can support you to do this.