In England, Wales and Northern Ireland, if you know you are HIV-positive, and you have unprotected sex without telling your sexual partner about your HIV status, and your partner becomes infected as a result, it is possible you could have legal action taken against you.

In Scotland, the law is different. A person with HIV may be sent to prison if they do not tell a sexual partner that they are HIV-positive before having sex without a condom. They may be jailed even if there is no HIV transmission.

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

Several people in the UK have been charged with committing grievous bodily harm (GBH) because they infected their sexual partners with HIV through unprotected sex, without having first told them they were HIV-positive. Some of them have been convicted and sent to prison. There have been many more arrests and investigations, some of which have lasted months. They have had a serious impact on the lives of both the accused and the people making the complaint.

It is important to remember that 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. But this has not yet been tested in court.

The law is also not clear on your liability if you use a condom and it breaks. Advice is that you should tell your partner that you have HIV and advise them to seek treatment called post-exposure prophylaxis (PEP).

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 – unprotected anal and vaginal sex have the highest risk, but there is good 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 you are verbally or physically threatened or attacked. Staff at your HIV clinic or HIV support organisations can help you with developing techniques for disclosure. Talking to other HIV-positive people 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 unprotected sex. 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 unprotected sex, that he or she is HIV-positive.

Often HIV-negative people (or those who don’t know their status) expect people with HIV to tell them before they have unprotected sex. They will then assume that, because there has been no mention of HIV and there has been unprotected sex, their partner is also HIV-negative.

Just as HIV-positive people 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 the law as it now stands means that the balance of responsibility has shifted to 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 and that you find an experienced lawyer straight away, prior to making any statement. In the UK, the Terrence Higgins Trust helpline, THT Direct, can help you find both these; you can speak to them in confidence on 0845 12 21 200. 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.

For more information, NAM’s resource, HIV & the criminal law, is available to buy and is also available on our website.