In the past few years there has been considerable discussion of the `rights' and `responsibilities' of the HIV-positive. This was even the theme of a recent World AIDS Day. Unsurprisingly, such a theme gave an opportunity for the moral right to demand more punitive sanctions against HIV-positive people, but it also raised the issue amongst HIV prevention workers and affected communities of the extent to which responsibility for protected sex lies with people who know they are infected.

A number of arguments have been put forward to support the view that safer sex is a mutual responsibility i.e. `it takes two':

• Sex is a reciprocal activity which usually requires consent. Consent can also be given to unprotected sex.
• People with HIV face enough discrimination and rejection already without having to disclose their HIV status to everyone they have sex with.
• The transmission risk of every single sexual encounter is being overstated if there is an insistence that people with HIV should always reveal their status. Typically the risk is fairly low.

However, critics of these views have made the following points:

• Power lies with the person who knows their HIV status. This makes the sexual encounter unequal, not mutual.
• We are all individuals and have the autonomy to make decisions for ourselves. It is not good enough to argue that your partner appeared to consent to unprotected sex if you knew a risk was involved.
• If everyone revealed their HIV status there would be less discrimination because HIV infection would become more visible.

These ethical arguments have been given renewed attention in the wake of debates about negotiated safety and making assumptions about HIV status. A particular problem lies in the assumption, which appears to be widespread amongst HIV-negative and untested gay men, that HIV-positive men will tell them of their status before having sex. An assumption also exists amongst HIV-positive men that those who don't want to use condoms are also infected. As Hickson et al. have shown, these assumptions are frequently incorrect.

There is often a gulf between the attitudes of counsellors and HIV prevention workers on the one hand, and non-professionals on the other, towards issues of personal responsibility. Non-professionals are much more likely to make judgements about acceptable standards of behaviour than professionals because they have no professional obligation to remain non-judgmental. In this sense there is often a disjuncture of values between professionals and the population they serve.

It is important to make a distinction between the values needed to provide an effective service for people in need and the values which should govern social relations between consenting adults. If we believe consenting adults have the right to be treated with respect, then it follows that consenting adults should also have their right to remain uninfected with HIV respected by their sexual partners, and that this right operates prior to any requirements of mutual consent.

Some have argued that such an approach to the issue of rights and responsibilities lays open the HIV-positive person to criminal prosecution, and that this must be avoided at all costs. However, English law offers little support to the policing of private sexual acts. The legal difficulties involved in criminalising HIV transmission are discussed in detail in The law and HIV: the transmission of HIV as a criminal offence.