Judge Susan Thomas in a New Zealand court last week ruled that Justin Dalley, who is HIV-positive, did not have to disclose his status to a sexual partner because he had taken "reasonable precautions" to avoid transmitting the virus. New Zealand law requires that people disclose their HIV status if it could endanger their sexual partners. Dalley, who had sex with a woman he met over the Internet in April 2004, did not disclose his HIV-positive status and was charged with two counts of criminal nuisance. Thomas ruled that Dalley had taken reasonable precautions because he used a condom during sexual intercourse and did not ejaculate during unprotected oral sex. Thomas said that although people might have a moral duty to inform their sexual partner of their HIV status, it is not required by law (Kaiser Daily HIV/AIDS Report, 10/7). The New Zealand Herald recently published an editorial and an opinion piece about the ruling, which are summarized below.
If the New Zealand court ruling that Dalley was not required to tell his sexual partner he was HIV-positive because he used a condom during intercourse "is to stand, there is a compelling case" for the country's Parliament "to change the law so it would become a legal, rather than just a moral, duty to tell a prospective partner" your HIV status, a Herald editorial says. The ruling was "faulty" on both "moral" and "pragmatic" terms, according to the editorial. "[T]he act of sex is a mutual one, and it is wrong for one of the partners to conceal a life-or-death secret from the other." In addition, the Herald writes, "Given that the risk" for HIV transmission "remains" during intercourse using a condom, "it is hard to see how wearing a condom can be judged to be a 'reasonable precaution.'" By "clarifying the law," Thomas has "unavoidably" entered the government into "the bedroom and has made a rule that most people will find abhorrent," the editorial says (New Zealand Herald, 10/7).
"[T]hose of us who are HIV-positive have a moral duty to inform our partners, but legislating for morality is not a wise course," Michael Stevens, a doctorate candidate studying the social context of HIV infection at University of Auckland, writes in a Herald opinion piece. About one-third of the world's HIV-positive people do not know their status, so "[f]rom a public health stance, it is far more desirable that people are encouraged to take responsibility for their own sexual well-being," according to Stevens. HIV-positive people "should be allowed to have a sex life" if "all reasonable precautions are taken," Stevens says, adding, "The real reason this case has excited such a reaction is that our culture does not deal comfortably with the topic of sex" (Stevens, New Zealand Herald, 10/11).
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Reprinted with permission from kaisernetwork.org. You can view the entire Kaiser Daily HIV/AIDS Report, search the archives, or sign up for email delivery at www.kaisernetwork.org/dailyreports/hiv. The Kaiser Daily HIV/AIDS Report is published for kaisernetwork.org, a free service of the Kaiser Family Foundation, by The Advisory Board Company. © 2005 by The Advisory Board Company and Kaiser Family Foundation. All rights reserved.