Body Positive Auckland says it's concerned about increased stigma for HIV+ people following a public outcry against the international precedent-setting Justin Dalley case this week. Body Positive Auckland says its delighted at a court ruling made this week that found an HIV+ person does not have to disclose their status to a sexual partner if a condom is used. 36-year-old Wellington man Justin Dalley was found not guilty on charges of criminal nuisance. He had both oral and vaginal sex with his female partner, using a condom only for the latter. Based on the medical evidence presented, Judge Susan Thomas said Dalley's legal duty was to take reasonable precautions to avoid transmitting the virus, and he had done this by using a condom. It's a decision that has seen a wealth of emotive, and decisively negative, feedback from the public at large. Outrage has been expressed, particularly on talk radio, that HIV+ people are not legally required to disclose. “There's some people who are absolutely outraged at the mere presence that we exist also,” says Body Positive Auckland spokesman Bruce Kilmister. “Those people have no understanding of the subject, and no real appreciation of the life of a person living with HIV.” Judge Thomas did concede, however, that although there was not a legal obligation for disclosure provided a condom was used, there may be a moral obligation. “The moral obligation rests with each individual,” Kilmister counters. “It's relevant to a whole range of issues regarding that relationship. It's no less a moral issue than a woman who has, for example, the wart virus passing cervical cancer across to a partner. In fact more people die from cervical cancer in this country than HIV/AIDS.” Nevertheless, many people are having difficulty understanding why an HIV+ person would not automatically disclose their status to a sexual partner. “Those people also have difficulty accepting responsibility for their own behaviour,” he says. “This decision has made it absolutely clear that, as far as the law is concerned, it is the responsibility of every single person engaging in sexual activity to protect themselves. They cannot lump all of that responsibility onto the HIV+ person.” However, Body Positive accepts that while sexual responsibility is a two-way street, the HIV+ person does have an additional responsibility, but “that is discharged quite adequately by ensuring that a condom is used. And condoms are far more likely to save a person from infection than simply disclosure.” Kilmister says the group are concerned that the public backlash from the Dalley decision will further stigmatise HIV+ people. To counter this, Body Positive have agreed to enter into a joint venture programme with the NZAF and Positive Women. The programme will promote resource material and a campaign to advise people of their rights, responsibilities, and the potential risk of actions in the area of criminal liability. Wednesday's court ruling has set a precedent, which will be felt internationally. Even though the decision was made at a District Court level, it's unlikely an appeal would overturn it. "The decision is logical and very well-reasoned and accordingly it would be very surprising if other District Court Judges, and even the High Court if the matter ever comes before it,did not come to regard it as definitive," says Wellington lawyer and former NZAF Chair Charles Chauvel. "Technically speaking, a Crown appeal is permissible but it must be highly unlikely in this case since the decision is compelling." Body Positive have known for some time that this stance had a strong legal backing. Kilmister says Body Positive spent thousands of dollars securing legal opinions from the most eminent professional legal minds in this country. “Had the decision gone against us, we certainly would have supported an appeal to a higher court,” he says. What would the implications for gay men have been if the Dalley decision had gone the other way? "A very unfortunate situation would have arisen in that there would have been less incentive for condom use during penetrative sex," says Chauvel. "It would also have sent an unfortunate message that only the sero-positive partner was responsible to ensure the safety of the sex, whereas in fact we are all responsible for our own safety, including insisting on condom use where appropriate." Amid the rising flames of wider public outrage over the decision, the fact that the Dalley decision has actually reinforced that HIV+ people do have legal obligations to their sexual partners has been overlooked. "It must be said that there is a risk of criminal liability if a condom is not used and disclosure is not made," Kilmister points out. "Equally so, an HIV+ person cannot lie about their HIV status if the potential partner is asked. So it reinforces that public health perspective that it is everybody's individual responsibility to take care of themselves, and that they must ensure that when they engage in sexual activity, it's best to use a condom." Fundamentalist groups like Family Life International have wasted no time in speaking out, saying that this case is further proof that people should abstain from sex altogether. "Well, I would say that people have a right to make that choice, in the same way they can abstain from driving a car on the road because they might have a crash," says Kilmister. "But that's not the reality of life. The reality of life is: most people do drive cars and most people do enagge in sexual acitivity. All we can do is continue to educate about the potential choices, and the best way to safely go about their actions." Chris Banks - 7th October 2005