Do I Still Have To Say I'm Positive?
Maintaining an undetectable viral load (UVL) for at least 6 months means the virus does not transmit during sex (this is also known as Undetectable= Untransmittable, or U=U). So does someone still need to disclose their HIV status when they are having condomless sex - even though the virus cannot pass on?
We spoke to Danny Lam, a legal scholar who is studying the legal implications for advances in HIV science from the University of Auckland, to find out more about what U=U means under our current criminal justice system.
In New Zealand, the current law requires a person living with HIV to disclose their status before having vaginal or anal sex without a condom, regardless of their viral load. If condoms are used, then it's not legally required for HIV status to be disclosed.
Danny says that because taking a test case through the courts would be stressful for those involved, the Government, the police or the legal system should clarify what is deemed as unlawful in the light of new knowledge about U=U.
He says that at 2018's HIV Treatments Update Seminar, Auckland Crown Solicitor Brian Dickey was asked about the implications of U=U for disclosure, but his answer was that we still don't know whether having an undetectable viral load means prosecution can be avoided. He also says that the Government and the police should make it clear to people living with HIV who are undetectable that they won't be criminalised.
“At the moment we are flying blind. We have all the answers from science but no one has confirmed it through law - if someone who has UVL is prosecuted for exposing their partner to HIV, then they will be prosecuted under section 145 of the Crimes Act under New Zealand law."
"If a case were to appear, I’d predict there would be a large amount of medical evidence to show that because they were undetectable, there was no possibility of transmission – but even that would be a traumatic court process for those involved."
I’d predict there would be a large amount of medical evidence to show that because they were undetectable, there was no possibility of transmission – but even that would be a traumatic court process for those involved.
Legally, if a person living with HIV has not taken ‘reasonable precautions’ to avoid HIV transmission, they risk prosecution under the Crimes Act 1961 for criminal nuisance or wounding with intent.
Even if HIV transmission did not occur, a person living with HIV who has an undetectable viral load could be imprisoned for up to one year if condoms weren't used and HIV status wasn't disclosed. If HIV transmission did occur (this is hypothetical, because with UVL we know that it wouldn't), they could be imprisoned for up to seven years. If the court found that HIV transmission was intentional, there could be more serious charges.
So it comes down to what "reasonable precautions" are - at the moment, legally, this just means condoms. But around the world, more and more courts are starting to see that an undetectable viral load effectively means that the virus is “untransmittable” and that prosecutions for non-disclosure are unjustly criminalising people living with HIV.
What if my partner and I are both positive and undetectable? Can we have sex without condoms?
Yes, however having sex without a condom always carries the risk of STIs, particularly if you are having sex with other guys as well as your regular partner.
There is also a very small risk that when two people living with HIV have sex without a condom that reinfection will occur, if one partner has a strain of HIV that is resistant to the treatment that the other guy is on. However, if you’re taking HIV medication and have an undetectable viral load you can’t pass on HIV, and therefore this won't be an issue.
Judges have looked at research such as the Opposites Attract Study (which included more than 17,000 cases of anal sex without a condom) and the PARTNER trial (which had 22,000 cases) to see that there have been no reported cases of HIV transmission where the partner living with HIV had an undetectable viral load.
In Chicago in 2018, personal trainer Jimmy Amutavi had charges of the criminal transmission of HIV dropped after prosecutors researched the effects of his suppressed viral load. His attorney said:
"It is clear that my client did everything possible to prevent transmission of HIV by taking antiretroviral meds, and I am tired and angered that I must continue to defend people who are publicly prosecuted for merely having a manageable disease. You simply cannot have the criminal intent to transmit disease when that disease cannot be transmitted."
And in Germany, a man was cleared of attempted grievous bodily harm after a judge heard the man’s doctor could prove he was unable to transmit when he had condomless sex with two colleagues. A similar ruling happened in Sweden in 2019, and the Swedish Federation for Lesbian, Gay, Bisexual and transgender Rights and HIV Sweden, expressed their joy in a joint statement:
"The verdict means that people living with HIV won't be prosecuted and convicted in the future, as in principle all those living with HIV in Sweden receive treatment."