A 41-year-old HIV-positive man has been convicted by a court in Edinburgh of reckless and culpable conduct after infecting a female sexual partner with HIV.
This is the third conviction for reckless HIV transmission in Scotland.
The man was also convicted on three further counts of this offence for having unprotected sex with three other women, even though HIV transmission did not occur. This is the first time in Britain that an individual has been convicted of recklessness when no HIV transmission occurs.
The offences took place between January 2003 and December 2008. The individual was diagnosed with HIV in 1994, but did not tell the four women with whom he had unprotected sex that he was HIV-positive.
A 28-year-old woman became infected with HIV. She was diagnosed while pregnant. She terminated the pregnancy after receiving her diagnosis. The man had been in a relationship with this woman for six years, but had not told her that he had been diagnosed with HIV in 1994.
Sentencing has been deferred for the preparation of reports. The man is in custody.
The case has made legal history in Scotland as the individual was also convicted on three other counts for unprotected sex without disclosure, even though HIV transmission did not occur.
Although legal experts recognised that such prosecutions were technically possible under the Scottish offence of reckless and culpable conduct, this is the first time that it was been prosecuted.
“It would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused", said Roy Kilpatrick of HIV Scotland.
Concern was also expressed by Deborah Jack of NAT (National AIDS Trust) who said, “it is totally unjust to single out people with an HIV diagnosis for punishment for unprotected sex - we all need to be wiser and safer, looking after ourselves and those we have sex with.”
She added, “Most HIV transmissions are from people who have never had an HIV test.”
It is estimated that as many as a third of HIV infections in the UK are undiagnosed.
Reducing the number of undiagnosed infections in the UK is seen as being key to controlling the onward transmission of HIV. Moreover, most of the remaining HIV-related deaths in the UK are due to late diagnosis.
"We recommend that the Scottish Executive change the law so that people with HIV cannot be charged with culpable and reckless conduct if no transmission took place”, said Jack.
England and Wales have a different legal system to Scotland. All the convictions for reckless HIV transmission in England and Wales have been for grievous bodily harm. Unprotected sex without disclosure cannot be prosecuted if HIV transmission does not occur.
More information about HIV transmission and the criminal law can be read here