Editorial: HIV and the right to know

Until this week it was fair to assume that most people would expect it was their right to know if a prospective sex partner was HIV-positive. Certainly that has been the thrust of a number of court decisions in which men have been convicted and jailed for having unprotected sex with partners who were unaware of their status.

It is also the assumption held by the police who prosecuted HIV-positive Justin William Dalley on charges of criminal nuisance after he had sex with a woman who did not know of his condition. Dalley, however, used a condom and in the eyes of the law this made all the difference.

The Dalley case raises serious questions about morality and law as well as individual rights and duties which swirl around each other like the eddies and currents at the confluence of two great rivers. Does an individual have an absolute right to know that a potential partner is HIV-positive? Does someone who is HIV-positive have an obligation to tell?

In her decision, Judge Susan Thomas recognised that morally there may well be a duty to tell. But her task was to judge on the law, not morality, and the law required only that someone in Dalley's position take reasonable precautions to avoid transmitting HIV.

In reaching her decision that Dalley had fulfilled his legal obligations by using a condom, Judge Thomas relied heavily on medical evidence to the effect that the risk of transmitting HIV from a man to a woman through vaginal sex was "relatively low" and reduced further by the use of condoms.

Organisations supporting those with HIV have welcomed the decision as clarifying the law and one applauded it as a good decision to "keep the state out of the bedroom". But in clarifying the law the state has unavoidably entered the bedroom and has made a rule that most people will find abhorrent in moral as well as pragmatic terms - that those who are HIV-positive can keep it a secret as long as they use a condom.

In moral terms the judgment gives undue weight to public health issues and the right of HIV-positive people to remain silent at the expense of an individual's right to know. Even more importantly, it fails to recognise that the act of sex is a mutual one and it is wrong for one of the partners to conceal a life-or-death secret from the other.

In pragmatic terms the judgment is faulty. It emphasises the value of a condom in reducing - but not eliminating - the risk while underplaying factors that make it worse, such as the presence of other sexually transmitted diseases. Given that the risk remains and its extent depends on variable factors, it is hard to see how wearing a condom can be judged to be a "reasonable precaution".

If this judgment is to stand, there is a compelling case for Parliament to change the law so it would become a legal, rather than just a moral, duty to tell a prospective partner about HIV. Judge Thomas herself recognised that most people would want to know. No one choosing whether to take any kind of risk has a chance of making the right decision without knowing the full nature of the risk. The need to know is all the more pressing in cases such as this when the consequences are so grave.