Scotland uses a Common Law offence known as ‘Culpable and Reckless Conduct’ to prosecute reckless transmission of sexually transmitted infections (STIs).
Guidelines from the Crown Office and Procurator Fiscal Service (COPFS) notes refers to a 1936 ruling which created the Scottish legal definition of recklessness as conduct that is “gross or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences”.
Unlike in England and Wales, there is no disclosure defence: consent on the part of the complainant to the conduct, even if instigated by them, is not a defence in cases of criminal transmission of infection.
‘Culpable and Reckless Conduct’ requires that there must be injury or danger of injury to another, but there is no requirement to prove specific intent to cause injury. If there is evidence that a person intentionally sets out to transmit HIV (or another STI) to another person, assault laws could be used to prosecute them.
In Scotland ‘exposure’ to an STI without transmission is also a crime.
Of the five known sexual exposure/transmission cases since the first successful prosecution in 2001, two have also involved potential or perceived HIV exposure along with HIV transmission. One case involved both HIV and hepatitis C transmission.
In addition to the above cases where all defendants were men, one woman has been prosecuted for exposing others to HIV via a needle prick (in 2016) and another woman currently faces charges for Culpable and Reckless Conduct for allegedly spitting at another woman. HIV has also been considered relevant to an assault and robbery charge after a woman claiming to have HIV brandished a needle at a young woman before robbing her.
In June 2020, Police Scotland announced it had amended policy and practice by ceasing logging people living with HIV as ‘contagious’ in its intelligence database (a resource routinely used by police), and would remove existing entries. This step forward in policing would not have occurred without the intervention of HIV Scotland who brought the matter to the attention of HIV Scotland’s senior administration, who then confirmed the practice was outdated and not in-line with other policing policy.
Culpable and Reckless Conduct
This leaflet available on the HIV Scotland website aims to explain prosecutorial policy and Scots law in a straightforward way, and to answer some of the most common questions and concerns people have. It is, however, not a substitute for legal advice.
Information for individuals living with HIV about the law in Scotland (and other UK jurisdictions).
Resources for both individuals living with HIV, as well as those advocating on their behalf, on all aspects of HIV criminalisation in Scotland (and other UK jurisdictions).
Sets out how prosecutors should deal with cases involving an allegation of intentional or reckless sexual transmission of, or exposure to, infection which has serious, potentially life threatening consequences for the person infected.