Condom clears man with HIV

Justin Dalley who, according to the judge, met his legal duty to try to avoid transmitting the virus. Picture / Herald on Sunday

A court ruling that a Lower Hutt man who used a condom was not legally obliged to tell a woman he was HIV-positive has been hailed as a win for safe sex and for keeping the state out of the bedroom.

Justin Dalley, 36, had protected sex with the woman and was yesterday found not guilty of criminal nuisance in a reserved decision handed down by Wellington District Court Judge Susan Thomas.

Mr Dalley had been found guilty this year of a similar charge - but for having unprotected sex with another sexual partner who he also did not tell he was HIV-positive.

The Aids Foundation and a support group for HIV-positive people, Body Positive, welcomed the decision yesterday as common sense.

Both said it provided a clear distinction in law between protected and unprotected sex.

Aids Foundation chief executive Rachael Le Mesurier said the precedent-setting case had established clear guidelines.

"Anyone who is HIV positive who has unprotected sex (and does not disclose their status) will be liable for criminal nuisance.

"Using a condom is a reasonable precaution where there has not been disclosure."

Auckland University law professor Paul Rishworth said the judgment balanced the right of a person to know a sexual partner's HIV status with legal obligations to take "reasonable" precautions not to endanger a person's health.

Mr 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.

Judge Thomas said Mr Dalley had met his legal duty to take "reasonable precautions" to avoid transmitting the virus.

He had done this by using a condom, and by not ejaculating during oral sex.

Judge Thomas said the evidence of health experts was that the use of a condom was sufficient to prevent the transmission of HIV.

While people might expect a sexual partner to disclose his or her HIV status, there was no obligation under law - except where it endangered a partner.

Mr Dalley's lawyer, Ian Hay, said his client was pleased with the outcome and pleased the cases were over.

"It's a big relief. It has been a very difficult time for him."

Professor Rishworth said there was one school of thought that a person should disclose his or her HIV status and had a moral duty to do so.

But the court had determined that using a condom, which was mostly effective and where the risk of transmission was small, met the requirement to take precautions without having to tell a partner.

"It's a supportable position," he said.

Body Positive chairman Bruce Kilmister said he was delighted with the not guilty verdict.

"We've lived in a state of confusion."

The ruling confirmed it was every single person's responsibility to take care when having sex.

He said the decision was also a victory for safe sex campaigners, who believed the use of condoms was more sensible than relying on people to disclose their sexual history or HIV status.

"It's a very good decision to keep the state out of the bedroom. Condoms work and they are the best course of action for everybody.

"At least 30 per cent of people living with HIV don't know their status."

- additional reporting NZPA