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HIV legal defence
A new legal defence is available for HIV positive people who do not disclose their status to sexual partners.
The changes allow people living with HIV to avoid penalties under NSW public health law if they can demonstrate they took ‘reasonable precautions’ to prevent transmission of the virus.
The amendment will not change the legal requirement for all people with HIV to disclose their status before a sexual encounter. What is now permitted, under public health law, is a defence of taking ‘reasonable precautions’ if disclosure does not occur.
ACON warned that until the new defence has been tested in the courts, there is limited guidance as to what does or does not constitute a ‘reasonable precaution’.
HIV legal experts have indicated to the organisation that the proper use of condoms is likely to be considered by a court of law as taking reasonable precautions.