Positive Life NSW Blog

Sex, HIV disclosure and the law: What you need to know

Posted by on in Advocacy and Policy

To help PLHIV navigate the sometimes tricky issue of disclosure in a range of sexual and drug using situations, solicitors Jennifer Smythe and Indraveer Chatterjee from the HIV/AIDS Legal Centre and Positive Life NSW are developing a new plain language resource called Sex and HIV Positive People - Having a Good Time without Getting into Trouble.

The resource describes some common situations that people living with HIV (PLHIV) might find themselves in and offers professional advice. Here are some excerpts from the resource:

"I had sex with a guy but didn’t tell him that I’m positive."
This shouldn't be a problem as long as you practice safe sex. While the law in NSW requires you to disclose your HIV-positive status before sex, it is a full defence if you took "reasonable precautions". Charges are rarely laid under this section of the Act and Courts have not had a chance to say exactly what "reasonable precaution" are, but condoms and a water based lube should do it.

"This just happened last night and we didn’t practice safe sex. I feel really bad because I normally always use condoms."
This is a tricky situation. If you tell him straight away, then he will be able to go and get PEP, or tell you that he is HIV-positive too. If he gets PEP in time (up to 72 hours after exposure, but the sooner the better), the chances of him seroconverting are pretty low, and even if he does, it will really help in a worst case scenario of criminal charges being brought against you.

"But I've got an undetectable viral load!"
If you've got an undetectable viral load, then the odds of infecting someone with HIV are low. This means that criminal charges are unlikely. However, we would not recommend relying on your undetectable viral load as being a "reasonable precaution" as Courts are generally rather behind the times in matters of this sort. Eventually, someone will try this defence and then we will have a better idea how the Courts will view it. You probably do not want to be the test case.

"Ok, but there's another guy I had sex with months ago who keeps asking if I'm positive."
If you had sex months ago, then it is much too late for him to get PEP now. You don't have to tell him anything now, and you should be aware that anything you do tell him could be used in proceeding against you. However, you could tell him that if he is worried about his health, then he should get tested.

"Actually, we're still hooking up now and then..."
If you've been having unprotected sex with him, without disclosing your HIV positive, then you could be in trouble. This is particularly the case if he's been asking you whether you're positive. If he has contracted HIV, then you may face charges under the Crimes Act. Repeatedly lying to someone about your HIV positive status whilst having unprotected sex with them, is the type of behaviour that the Courts are likely to consider as "reckless". The penalty for recklessly infecting another is up to seven years in jail. Although few people have been convicted of this offence, those that are convicted are almost always imprisoned. In addition, if he's having unprotected sex with you because he thinks you're negative, he's probably also having unprotected sex with other guys, because he thinks he's negative. All these guys are at risk.

"Criminal charges? Jail? How do I make sure it doesn’t happen to me?"
Always practising safe sex is the best way to make sure this never happens to you. Criminal charges generally do not result where you do your best to ensure that you do not hurt someone else. Practising safe sex shows you are being careful not to infect others. Also these charges are very rare, and usually only happen where there has been evidence of wrongdoing, such as lying about HIV status, faking HIV test results or infecting someone through sexual assault.

There is a requirement to disclose HIV status under the NSW Public Health Act 2010. The Act says that you have to tell your partner before you have sex if you have HIV, or take reasonable precaution to prevent transmission. Since 2017, the requirement for people living with HIV (PLHIV) to disclose our HIV status before sexual activity with another person was removed, provided we take reasonable precaution to prevent transmission (see further clarification below).

"Reasonable Precautions" includes the correct use of condoms and lube. The definitions of what "Reasonable Precautions" are listed here by NSW Health.

Positive Life NSW encourages all people with HIV (PLHIV) to be upfront and open about their HIV status in an endeavour to normalise HIV and combat the impact of HIV related stigma and discrimination – which is more likely to flourish in an environment where PLHIV remain silent and hide their status from others. We also acknowledge for some people, disclosure will be difficult and assert the right of PLHIV to self-determination and non-disclosure.

Also published at GayNewsNetwork 11 July 2014

Last modified on


  • Guest
    Positive Life NSW Tuesday, 07 January 2020

    Hi there,

    Thank you for sharing your experience with us. This article was written in 2014 when the law did require you to disclose your HIV-positive status before having sex. However, in 2017, The Public Health Amendment (Review) Bill 2017 removed the requirement for people living with HIV (PLHIV) to disclose HIV status before sexual activity with another person providing they have taken reasonable precautions against the onward transmission of HIV to their sexual partners (see further clarification below). Therefore, in 2020 we no longer by law need to disclose our HIV status before sex.

    As PLHIV we still need to take ‘reasonable precautions’ when we have a diagnosed sexually transmitted infection (STI), including HIV, so the infection isn't transmitted. The act states "A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition."

    Reasonable precautions against the transmission of HIV include:
    • “use of a condom” (If the condom were to break and the person with HIV isn’t on antiretroviral therapy, advising the person to seek Post Exposure Prophylaxis (PEP) within 72 hours from an emergency department or Sexual Health Clinic) or
    • “having an HIV viral load of less than 200 copies/mL, usually resulting from being on effective antiretroviral treatment” or
    • “seeking and receiving confirmation from a sexual partner that they are taking HIV pre-exposure prophylaxis (PrEP)”
    see: https://www.health.nsw.gov.au/phact/Pages/pha-s79.aspx#1

    You can also read Positive Life NSW’s recent articles on HIV, sex and disclosure and about the current law within the NSW Public Health Amendment (Review) bill. see: https://www.positivelife.org.au/latest-news/pha-amendment-bill-2017.html

    If you are concerned about a police complaint and would like to seek advice around your rights we would recommend you get into contact with the HIV/AIDS Legal Centre Inc. (NSW) on (02) 9206 2060 or halc@halc.org.au

    Please contact Positive Life NSW on (02) 9206 2177 or contact@positivelife.org.au if you have any further questions or would like to speak with our Treatments Officer or a peer (another person living with HIV) about your rights and responsibilities on where and when you are required to disclose your HIV status.

    - Positive Life NSW

  • Guest
    Anonymous Sunday, 05 January 2020

    I am HIV positive and undetactable viral load. I confirmed thrice if he is on PREP and he confirmed. He is taking prep daily. After sex he asked me for my hiv status and i told him the truth. Now he filed a complaint with police . do i need to worry about it?

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Guest Saturday, 31 October 2020

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