Criminal law

Unprotected sex

People with HIV are liable to prosecution if they have unprotected sex and their partner does not know about their infection. The legal position here is clear.

In most cases that go to court, however, the situation is more complicated. Often a couple quarrels and breaks up, then one files a lawsuit against the other. 

It is often the case that the partner knew about the HIV infection.  If both partners mutually chose not to practice safer sex in these kinds of cases, then the HIV-positive person is not liable to prosecution.

These arrangements are very difficult to prove in court, however. Arrangements are often made when those involved are not thinking clearly, for example, because they are in love or high on drugs.

But some couples also consciously decide not to use condoms above all when the viral load of the HIV-positive partner is below the detection limit. The risk of infection is then very small (see “Viral load method” and the next section).