HIV+ man 'used a condom'

2005-10-05 13:46

Wellington - An international legal precedent was set on Wednesday when a court found a New Zealand man did not have to tell his sex partner he was HIV-positive because he used a condom, his lawyer said.

New Zealand law says people with HIV or other sexually transmitted diseases are legally required to disclose their conditions if it could endanger their partners.

Justin Dalley, 36, was acquitted in a Wellington court of two charges of criminal nuisance after having unprotected oral sex and protected sexual intercourse with a woman he met over the internet in April last year.

Dalley's lawyer, Donald Stevens, said the finding was an important legal precedent in New Zealand and internationally.

"There would be a profound impact if the decision had gone the other way," he said.

"If you require people who know they are positive to disclose (their infection) there would be a disincentive for people who thought they were positive to be tested."

In the judgement, Judge Susan Thomas said Dalley's legal duty was to take reasonable precautions to avoid transmitting the virus. This he had done by using a condom during intercourse.

"The evidence of health experts in the area is that the use of a condom for vaginal intercourse is sufficient for the prevention of the transmission of HIV and that this can be met without the requirement for disclosure."

Although there might be a moral duty to inform sexual partners, it was not required by law, she said.

The New Zealand Aids Foundation welcomed Wednesday's decision as a victory for common sense.

"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," executive director Rachael Le Mesurier said.

In a case in June involving a different woman, Dalley was sentenced to 300 hours' community work for having unprotected sex for four months with his former partner and failing to tell her he was HIV-positive.

- AFP