HIV + the Law
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.
You have not committed a crime if you didn’t know you had HIV at the time of exposure or transmission. You have also not committed a crime if you told your partner your status (and they understood the risks), or if you have taken reasonable action to reduce the risk of transmission or exposure to others such as using a condom.
If you are worried about your risk of transmitting the virus to someone then please speak to your doctor or nurse. There are lots of good ways to reduce your risk to others.
Your health care professionals have a duty to keep your medical information confidential but there are a few situations when the normal rules of confidentiality may not apply. These situations are extremely uncommon.
• If a court requests the information
• In some cases, if the Police request the information
• If a doctor believes that someone with HIV is putting the life of another person in danger, the doctor has the right to disclose information to the person in danger. This can only be as a last resort, and after telling the person with HIV that confidentiality will be broken