HIV + the Law

Protections under the Equality Act 2010

How does the Equality Act 2010 protect people living with HIV?

According to the act, people living with HIV fall under the “disability” category (section 6).

What does this mean if you are living with HIV?

  • You will be given time off from your employer for clinic appointments
  • You cannot be discriminated against at work, and if you are, your employer will have to take immediate action as they could also be held responsible for discrimination
  • You cannot be discriminated against when applying for a job, in receiving opportunities (training, promotions etc.) or when being dismissed or selected for redundancy

DISCLOSURE: Nobody is under any legal obligation to disclose their HIV status. However, doing so in certain circumstances could prove beneficial:

  • Your employer: so that they can make adjustments to your working times for clinic appointments
  • Your GP: so that if you need other medication, they will know how to better help you
  • Your dentist: so that they can look for HIV related problems in your mouth

Prosecution

Under Scots Law, it is possible to be prosecuted for passing on HIV transmission) or putting another person at risk of HIV (exposure).

A person can be prosecuted for recklessly passing on an infection (known in legal terms as ‘reckless injury’) – this is what is meant by transmission. A person can also be prosecuted for recklessly putting someone at risk of infection, even if the infection is not passed on (known in legal terms as ‘reckless endangerment’) – this is what is meant by exposure.

Only a tiny number of cases have made it to court in Scotland, investigations by police are rare and most are dropped at an early stage because of a lack of evidence.

You could be found guilty of reckless transmission of HIV if evidence is provided that proves all of the points below applied to you at the time of the alleged offence:

  • You knew you had HIV
  • You understood how HIV is transmitted
  • You had sex with someone who didn’t know you had HIV
  • You had sex without a condom
  • You did not follow the advice given by your doctor on preventing risk to others
  • You transmitted HIV to that person

Under Scots law it is possible for you to be found guilty of exposing another person to HIV, even if the virus has not been passed on. The circumstances in which charges may be brought are much the same as transmission cases, with the obvious exception of transmission not having taken place. Exposure cases are extremely rare and should only apply in exceptional circumstances.

The simplest way to avoid prosecution is to make sure that your partner knows you have HIV and that whatever sex you have is consensual WITHIN this knowledge.

If you do not feel able to tell them, you should always use a condom to avoid passing it on.

For more information or advice on HIV transmission and the law visit THT’s website or talk to the MOT team.

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