Factors affecting HIV-related sexual risk-taking in people living with HIV

Edwin J. Bernard
Published: 18 July 2010


  • BREAKING: Justice Committee report recommends wide-ranging reforms to HIV criminalisation in Canada. Congratuations… https://t.co/wzBfQ2DEhl 18 Jun 2019
  • RT @AIDSLAW: We've spent decades advocating for this critical change. We're very happy that it's a key part of the Justice Committee's repo… 17 Jun 2019
  • Published today - 'Using Research in the Fight Against #HIVCriminalisation - A Guide for #Activists' to help advoca… https://t.co/RlrZsl6yHh 13 Jun 2019
  • RT @HIVLawCom: A new @HIVJusticeNet report analyses the growing global movement against #HIV criminalisation. Six countries saw precedent… 06 Jun 2019
  • #HIVIsNotaCrime! Now in Spanish, French & Russian -- #MakingMediaWork for #HIVJustice: An introduction to media eng… https://t.co/MP08yOzZSx 06 Jun 2019
  • RT @WOLA_org: New report by @WOLA_org, @IDPCnet, and @Dejusticia shed light on the disproportionate impact of pretrial detention for drug o… 05 Jun 2019
  • Thanks to #RobertCarrFund for recognising a global network focused on ending #HIVcriminalisation was work that need… https://t.co/PDdmGewkxL 29 May 2019
  • BREAKING - JUST RELEASED: New report analyses the successes and challenges of the growing global movement against… https://t.co/gcRgWJ0AwH 29 May 2019
  • Previewing our new report, Advancing #HIVJustice 3, published on May 29th, at the #ChallengeCrim intersectional dia… https://t.co/WB3HsGvJp6 23 May 2019
  • HJN is delighted to be part of this important cross-movement project to #ChallengeCrim globally. https://t.co/gp9KDC2Y5E 23 May 2019
  • RT @Account4All: "You have to work with grassroots civil society to make access to justice a reality and to ensure justice reaches every pe… 23 May 2019
  • Coming May 29th....Advancing HIV Justice 3: Growing the global movement against HIV criminalisation… https://t.co/bslamJNarH 17 May 2019
  • RT @alisapower: If you have NGO managerial skills and a commitment to human rights in the context of HIV - this is an enormously important,… 15 May 2019
  • Could you be one of our new HIV Justice Network Supervisory Board Members? Applications close 31st May 2019. Full… https://t.co/CfD2P85KoF 15 May 2019
  • RT @AIDSLAW: What this means is people living with HIV can face years in jail and be designated "sex offenders" for life if they don't tell… 23 Apr 2019
  • RT @AIDSLAW: Of greatest concern is that the BCPS has refused to clearly rule out prosecuting people who use condoms. A correctly used cond… 23 Apr 2019
  • RT @AIDSLAW: The @BCProsecution Service has announced a new policy on prosecuting allegations of HIV non-disclosure. But it falls short. Pe… 23 Apr 2019
  • The HIV JUSTICE WORLDWIDE website is now available in Russian. Join the movement to end HIV criminalisation!… https://t.co/gfLFms1qTW 07 Mar 2019
  • Веб-сайт HIV JUSTICE WORLDWIDE теперь доступен на русском языке. Присоединяйтесь к движению, чтобы положить конец… https://t.co/O3LBva7niW 07 Mar 2019
  • RT @BurtonTracey: @GlobalFund @UNDP @Follow_SALC Strategic litigation, legal defense + advocacy efforts are vital tools to counter the crim… 06 Mar 2019

Making sense of an HIV-positive diagnosis

For many people with HIV, the post-test counselling session at which they are told about their HIV-positive test result also serves as an introduction to what they need to know about preventing onward transmission of HIV. Post-test counselling, in fact, can be viewed as an important HIV prevention opportunity.

However, a newly diagnosed individual may be unable to take in more than a small fraction of the HIV prevention information provided in a single post-test counselling session. Furthermore, the quality of post-test counselling may vary widely from one health care setting to another.1

Something else that may limit the effectiveness of post-test counselling as an HIV prevention tool is its focus on the newly diagnosed person’s full range of needs. Whilst a discussion of HIV-related risk reduction strategies and disclosure of HIV-positive status to sexual partner(s) may seem like it ought to be a post-test counselling priority, many other issues vie for attention, including concerns about HIV treatment; interpersonal relationships; employment; financial security; pregnancy and parenting; and other fears and anxieties about the future.

Other than post-test counselling, structured opportunities for HIV-positive people to learn more about HIV-related risk reduction strategies may not be widely available. Most health care systems only provide such services on an ad-hoc basis. Few countries have developed policies regarding what used to be known as “positive prevention” (see ‘Positive prevention’ and its implications for responsibility) and there is often divergent advice on the riskiness of specific sexual practices.

For more on the impact of treatment and/or maintaining an undetectable viral load on the risk of HIV exposure, see the chapter: Risk.

For example, in Switzerland, people with HIV are now counselled that under certain circumstances – on antiretroviral treatment, with an undetectable viral load for six months, and with no other sexually transmitted infections – unprotected sex with their primary partner does not risk HIV exposure.2 In contrast, although the United States Centers for Disease Control and Prevention (CDC) acknowledges the Swiss approach, it notes that the risk of transmission on successful treatment is not zero and re-emphasises its long-standing advice that people living with HIV who are sexually active should use condoms with all sexual partners.3


Immediately following their diagnosis, many HIV-positive people are in a state of shock that can lead to confusion and depression. Studies from a wide variety of settings have found that some individuals go on to experience a period of denial.4,5,6,7 It takes time to adjust to living with HIV, the length of which depends on an individual’s situation.8,9,10

Denial is an important and complex psychological concept commonly encountered in clinical practice for those dealing with serious illnesses.11 Denial may mean that HIV-positive individuals:

  • Do not accept their diagnosis or are oblivious to it;

  • Minimise or ignore the full implications of their diagnosis, including their potential infectiousness to others; and/or

  • Avoid, delay or comply poorly with treatment.12

In several recent cases that have come before the courts (and reported in English-language newspapers), defendants have raised the defence of being in denial – including in Scotland, 2010;13 Australia, 2008;14 and Canada 200815 – but have nevertheless been found to be criminally liable for their actions. In another Canadian case from 2008 the judge pointed out during sentencing that the defendant, "seem[ed] to be living in a state of mind of denial," but nevertheless said that having unprotected sex with a stranger without disclosing his HIV status was "an act of extreme callous insensitivity that must be deplored" and that the five-year prison sentence sent a message "that this type of behaviour won't be tolerated".16

Denial is not to be confused with HIV denialism – a movement that does not believe that HIV causes AIDS, and therefore that HIV exposure or transmission is not harmful.17 This argument was attempted on appeal to the Supreme Court following a criminal HIV exposure conviction in South Australia, and was rejected.18

Mental health

Compared to uninfected individuals, people living with HIV have disproportionately high rates of psychiatric disorders, with mood and anxiety disorders being the most common.19 Evidence also suggests that posttraumatic stress and bipolar disorders are also more prevalent in HIV-positive individuals relative to the general population.20,21 Studies have also found that people with psychiatric disorders, including depression and substance use, are more likely to engage in HIV-related risk-taking behaviours, despite knowing their HIV status.22,23,24 Evidence is emerging that effective mental health interventions can help people reduce HIV-related risk-taking behaviour.25,26 However, there is a marked lack of structured opportunities within HIV treatment and care settings,27 and the public health system more generally,28 that could help individuals with such a dual diagnosis.

In addition, there appears to be a lack of capacity by the criminal justice system to recognise and deal effectively with mental health issues in the context of potential or actual HIV exposure or transmission.28 "[P]eople with psychiatric illness and intellectual disability are now expected by the courts to possess understanding of and perform according to wider societal norms for sexual behavior," write New Zealand social scientists Alistair MacDonald and Heather Worth in an assessment of how people with a dual diagnosis of mental illness and HIV can be viewed by the criminal justice system. "And while psychiatrists may assert that mental illness does not preclude individuals from knowing right from wrong, perhaps the context, or the world in which those living with the condition exist, does."28

Case studies involving individuals with mental illness on trial for actual or potential HIV exposure or transmission highlight such difficulties. A 26 year-old HIV-positive gay man in Canada was recently sentenced to eight months in prison for not disclosing his HIV status before unprotected sex whilst experiencing an episode of schizophrenia.29 Although the judge told the man that the case was "unusual. . . because you suffered from a mental illness that affected your judgment and because you have expressed genuine remorse" he was told he still deserved a custodial sentence because he "selfishly and recklessly had unprotected sex with [another man, who was not infected] and exposed him to a deadly virus... [It is ] essential that others who are HIV positive understand that if they fail to disclose their condition and engage in unprotected sex with men or women who are not infected, they will go to jail."29 And in the United States, a 28 year-old HIV-positive female sex worker, who was also "diagnosed with a neurological disorder and mental problems" was told she faced between three and 15 years in prison for "aggravated prostitution" because she continued to offer her sexual services following her HIV-positive diagnosis.30

HIV-related risk-reducing strategies used by HIV-positive individuals to protect HIV-negative partners

Just like their HIV-negative counterparts, HIV-positive individuals may have a variety of reasons not to use condoms.31 These include:

  • Being concerned that condom use signals lack of trust or infidelity.

  • Conforming to social norms that create social pressure to have unprotected sex.

  • Feeling that condoms reduce sexual pleasure or intimacy.

  • Participating in sexual cultures where non-condom sex is the norm and it is reasonable to believe anyone entering and taking part knows this.

  • Wanting to be free of worry about HIV during sex.

Consequently, people living with HIV may try to prevent transmission to partners by employing strategies other than 100% condom use and direct disclosure of known HIV-positive status.1 In a 2009 article discussing this phenomenon, researchers from the CDC provide several examples of what they term “moral” behaviour that may still risk HIV exposure.31

These include:

  • Receiving treatment and/or maintaining an undetectable viral load in the belief these will mean one is no longer infectious. However, as examined in the chapter: Risk, data are still being collected regarding the individual per-act risk of HIV transmission in all circumstances in HIV-positive individuals who are receiving treatment and/or maintaining an undetectable viral load. Courts in Geneva, Switzerland,32 have taken notice of the data on treatment, viral load and extremely low risk of infectiousness, even overturning a previous HIV-related conviction; however other courts currently do not accept that this reduces the risk of HIV exposure enough to remove liability in the absence of disclosure (although with an appeal based on this issue currently before the courts in Canada,33 this may soon change in other countries).

  • A belief that being the receptive partner in sexual intercourse minimises or eliminates risk of HIV transmission to the insertive partner. However, although the relative risk of HIV transmission may well be lower from a woman to a man, or from a receptive partner in anal sex to an insertive partner, a certain amount of risk remains. See the chapter: Risk.

  • Choosing partners who are (or assumed to be) of the same HIV status in order to have unprotected sex. To reduce HIV-related risk-taking this requires both partners to be aware of each other's current HIV status. Social scientists have termed this 'serosorting', although when both parties assume they have the same HIV status but one, in fact, has HIV (and either doesn't know it, or has not explicity disclosed this) this has been called "seroguessing".34

1. An excellent review of the changes in gay men’s sexual risk-taking behaviour between 1996 and 2006 can be found in Elford J Changing patterns of sexual behaviour in the era of highly active antiretroviral therapy. Curr Opin Infect Dis 19:26–32, 2006.

Case study: United Kingdom – Denial of HIV-positive status and counselling that transmission was "almost impossible" still results in criminal liability

In 2005, a 20 year-old Welsh woman pleaded guilty to 'recklessly' inflicting grievous bodily harm by transmitting HIV to her former boyfriend, also aged 20. Soon after they began living together, at the age of 18, the couple began having unprotected sex in an attempt to conceive. After the young woman tested HIV-positive she did not disclose this to her boyfriend. "I just didn't want to believe I had HIV," the young woman said in a letter to the court, which also stated that "health staff had told her that it was almost impossible for a woman to pass on the virus." She was sentenced to two years' youth custody.35


  1. Obermeyer C and Osborn M The utilization of testing and counselling for HIV: a review of the social and behavioral evidence. American Journal of Public Health 97: 1762-1774, 2007
  2. Swiss AIDS Federation Advice Manual: Doing without condoms during potent ART. Swiss AIDS Federation, 2008
  3. Centers for Disease Control and Prevention CDC Underscores Current Recommendation for Preventing HIV Transmission. Press release available online at: www.cdc.gov/hiv/resources/press/020108.htm, 2008
  4. Wringe A et al. Doubts, denial and divine intervention: understanding delayed attendance and poor retention rates at a HIV treatment programme in rural Tanzania. AIDS Care. 21(5):632-7, 2009
  5. Mohammadpour A et al. Coming to terms with a diagnosis of HIV in Iran: a phenomenological study. J Assoc Nurses AIDS Care. 20(4):249-59, 2009
  6. Nam SL et al. The relationship of acceptance or denial of HIV-status to antiretroviral adherence among adult HIV patients in urban Botswana. Soc Sci Med. 67(2):301-10, 2008
  7. Jones DL et al. Influencing medication adherence among women with AIDS. AIDS Care. 15(4):463-74, 2003
  8. von Ornsteiner JB D for "Diagnosis" or for "Denial"? Coming to Grips with Being Newly Diagnosed. Body Positive, October, 2001
  9. Konkle-Parker DJ et al. Barriers and facilitators to medication adherence in a southern minority population with HIV disease. J Assoc Nurses AIDS Care. 19(2):98-104, 2008
  10. Ncama BP Acceptance and disclosure of HIV status through an integrated community/home-based care program in South Africa. International Nursing Review 54 (4):391-397, 2007
  11. Goldbeck R Denial in physical illness. J Psychosom Res 43:575-93, 1997
  12. Kartikeyan S et al. (eds) HIV-related psychological disorders. in HIV and AIDS: Basic Elements and Priorities. Dordrecht, Springer, 2007
  13. BBC Online Man guilty of 'reckless' HIV sex. Available online at: http://news.bbc.co.uk/1/hi/scotland/north_east/8468354.stm, 19 January 2010
  14. Bernard EJ Australia: Guilty plea for HIV exposure likely to save Melbourne man from jail. Criminal HIV Transmission, 2 July 2008
  15. Bernard EJ Canada: Carl Leone was 'in denial' testifies psychiatrist. Criminal HIV Transmission, 15 February 2008
  16. Bernard EJ Canada: Owen Antoine sentenced to five years following one-night stand. Criminal HIV Transmission, 15 April 2008
  17. Kalichman S Denying AIDS: Conspiracy theories, pseudoscience, and human tragedy. New York, Copernicus Books, 2009
  18. Supreme Court of South Australia R v Parenzee, SASC 143. See analysis in: Groves M. The transmission of HIV and the criminal law. Criminal Law Journal (Australia) 31 Crim LJ 137, 2007, 2007
  19. Ciesla JA et al. Meta-analysis of the relationship between HIV infection and risk for depressive disorders. Am J Psychiatry. 158(5):725-30, 2001
  20. Israelski DM et al. Psychiatric co-morbidity in vulnerable populations receiving primary care for HIV/AIDS. AIDS Care. 19(2):220-5, 2007
  21. Atkinson JH et al. Psychiatric context of acute/early HIV infection. The NIMH Multisite Acute HIV Infection Study: IV. AIDS Behav. 13:1061-67, 2009
  22. Bradley MV et al. Depression symptoms and sexual HIV risk behavior among serodiscordant couples. Psychosom Med. 70(2):186-91, 2008
  23. Valverde EE et al Sex risk practices among HIV-positive individuals in Buenos Aires, Argentina. AIDS Patient Care STDS. 23(7):551-6, 2009
  24. Reisner SL et al. Stressful or traumatic life events, post-traumatic stress disorder (PTSD) symptoms, and HIV sexual risk taking among men who have sex with men. AIDS Care. 21(12):1481-9, 2009
  25. Kalichman SC et al. Co-occurrence of treatment nonadherence and continued HIV transmission risk behaviors: implications for positive prevention interventions. Psychosom Med. 70(5):593-7, 2008
  26. Sikkema KJ et al. Effects of a coping intervention on transmission risk behavior among people living with HIV/AIDS and a history of childhood sexual abuse. J Acquir Immune Defic Syndr;47(4):506-13, 2008
  27. Sikkema KJ et al. Mental health treatment to reduce HIV transmission risk behavior: a positive prevention model. AIDS Behav. 14(2):252-62, 2010
  28. MacDonald A and Worth H Mad and Bad: HIV Infection, Mental Illness, Intellectual Disability, and the Law. Sexuality Research & Social Policy 2 (2), 2005
  29. Bernard EJ Canada: Ryan Handy gets eight months in prison for HIV exposure. Criminal HIV Transmission, 28 March 2008
  30. Stambaugh JJ HIV-positive Knoxville woman a walking felony. Knoxville News Sentinel, 30 June 2009
  31. O'Leary A and Wolitski RJ Moral agency and the sexual transmission of HIV. Psychol Bull.135(3):478-94, 2009
  32. Bernard EJ Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction. aidsmap.com. Available online at: www.aidsmap.com/page/1433648/, 25 February 2009
  33. Pritchard D Man disputes HIV risk. Winnipeg Sun, 10 February 2010
  34. Zablotska I et al. Gay men’s current practice of HIV seroconcordant unprotected anal intercourse: serosorting or seroguessing? AIDS Care 21, 2009
  35. Bernard EJ Welsh woman given two year sentence in reckless HIV transmission case: widespread media misreporting. aidsmap.com. Available online at: www.aidsmap.com/page/1421318/, 19 July 2005
This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.
Community Consensus Statement on Access to HIV Treatment and its Use for Prevention

Together, we can make it happen

We can end HIV soon if people have equal access to HIV drugs as treatment and as PrEP, and have free choice over whether to take them.

Launched today, the Community Consensus Statement is a basic set of principles aimed at making sure that happens.

The Community Consensus Statement is a joint initiative of AVAC, EATG, MSMGF, GNP+, HIV i-Base, the International HIV/AIDS Alliance, ITPC and NAM/aidsmap

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.