Groundbreaking New Zealand ruling finds condom use eliminates HIV disclosure requirement

Edwin J. Bernard
Published: 09 October 2005

A New Zealand judge has ruled that an HIV-positive man cannot be prosecuted under New Zealand law for "criminal nuisance" after nondisclosure of his HIV status because he used a condom for vaginal sex, and because unprotected oral sex without ejaculation results in a negligible risk of HIV transmission. Although this was a case about HIV exposure, rather than transmission, some British legal experts believe that this groundbreaking decision is an important development that may help illuminate future prosecutions for “recklessly inflicting grievous bodily harm” by transmitting HIV to a sexual partner, since there is currently some uncertainty over whether English and Welsh law requires disclosure regardless of condom use.

Thirty-six year-old New Zealander Richard Dalley had faced two charges of criminal nuisance for having unprotected oral sex and protected vaginal sex with a woman he had met over the internet and did not tell about his HIV status. Earlier this year, Mr Dalley had been found guilty of "criminal nuisance" for having unprotected sex without disclosure with another sexual partner and was sentenced to 300 hours' community work.

In her ruling, Wellington District Court Judge Susan Thomas wrote: "It seems to me that most people would want to be told that a potential sexual partner was HIV-positive. There may well be a moral duty to disclose that information. There is however a difference between a moral duty and a legal duty, the legal duty in this case being to take reasonable precautions against and use reasonable care to avoid transmitting the HIV virus. The evidence was that, as far as public health needs are concerned, the steps necessary to prevent the transmission of HIV can be met without the requirement for disclosure. In other words, the use of a condom for vaginal intercourse is considered sufficient."

She added that her ruling was based on testimony from some of New Zealand's top HIV experts, including Dr Richard Meech, author of the first government report on AIDS in New Zealand in 1985.

In her ruling on unprotected oral sex she said that, "the risk of transmission of the virus as a result of oral intercourse without a condom is not zero because it is biologically possible, but it is so low it does not register as a risk. In any event Mr Dalley did not ejaculate. On the basis of those two factors I find that reasonable precautions against and reasonable care to avoid such danger were taken by Mr Dalley."

The New Zealand Herald reports, however, that the police have not yet decided whether to appeal against the Judge's decision, and that the case has opened up a debate over whether New Zealand law should be changed to require mandatory disclosure of HIV-positive status regardless of condom use.

The paper reports caretaker Justice Minister Phil Goff as saying "that there were no immediate plans for a law change. But he would listen to the public debate, and it might be an area that officials could work on. Mr Goff said the case of deliberately not using protection and having intercourse was far more clear-cut."

However, BBC online reported that Rachael Le Mesurier, executive director of the New Zealand AIDS Foundation welcomed the ruling: "Relying on HIV-positive people to tell you, and assuming that unprotected intercourse is safe if HIV is not mentioned, is a much riskier strategy, especially as approximately one third of people with HIV in New Zealand don't know they have it," she said.

UK legal experts are currently divided over whether practising safer sex without necessarily disclosing HIV status would protect someone from prosecution in the event that HIV transmission occurred. It is hoped that ongoing consultations between the Crown Prosecution Service and the HIV sector will make the law clearer.

A copy of Judge Thomas' decision can be downloaded from the New Zealand Ministry of Justice website.

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