Transmission of HIV as a Criminal Offence - Deliberate, Reckless, or Accidental ·
If the Procurator Fiscal considers that the transmission of HIV was either deliberate or reckless, then they could decide to prosecute the person believed to have transmitted the virus.
This is a complicated area of law due to such issues as burden of proof, identifying who was infected first, confirming that the DNA of one person’s HIV matches another’s, etc.
However, there have been successful prosecutions. For example, in 2007 Giovanni Mola was convicted, under Scots Law, of reckless injury to his girlfriend after the jury decided that he had knowingly infected his former partner with HIV and Hep C. The jury were more or less instructed by the judge to only convict if they had been convinced by the prosecution that Mola had not used condoms.
The criminalisation of HIV transmission is a very contentious issue and one which many HIV agencies have campaigned against, because they see that all the burden of responsibility and personal safety falls onto the person living with HIV rather than the negative person, when really both parties should take equal responsibility to ensure each other’s safety. The wisest course for us all, positive, negative or unsure, is to carry and use a condom every time.
For example, if you disclose to your sexual partner and they consent to barebacking, then the court may decide not prosecute. However, the courts have been known to take the position that the positive person should protect their sexual partners from becoming infected. Therefore, you could still be prosecuted for transmitting HIV despite your partners willingness to take that risk. If you use condoms, but do not disclose, then this may offer you some protection from prosecution.
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