Charges dismissed against HIV-positive NZ man who had protected sex

Agence France Presse - October 5, 2005

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WELLINGTON, Oct 5 (AFP) - An international legal precedent was set
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 women, 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.