Ten-year sentence in Scottish HIV prosecution

Michael Carter
Published: 26 February 2010

An HIV-positive man in Scotland has been sentenced to ten years in jail after being convicted of infecting one female partner with HIV and having unprotected sex with three other women without disclosing his HIV status.

The man was convicted in January of four charges of culpable and reckless conduct.

The ten-year sentence is among the longest imposed on an individual in the UK following conviction for reckless HIV transmission.

It is also the first time that anyone with HIV in the UK has been convicted for failure to disclose their HIV status to a sexual partner when HIV transmission did not occur.

The sentencing judge at Dumbarton high court condemned the man for behaviour, which he said had been "utterly irresponsible, dangerous and selfish".

He went on to say that the man’s failure to disclose had been had been “callous and cruel”.

Diagnosed with HIV in 1994, the man pleaded guilty to four charges of culpable and reckless conduct arising from unprotected sex with four women between 2003 and 2008.

One of the women, who was three months pregnant at the time she was diagnosed, became infected with HIV. After receiving her diagnosis, she terminated her pregnancy.

The conviction for non-disclosure when HIV transmission did not occur is a legal first in the UK.

Under the wide-ranging Scottish offence of culpable and reckless conduct, it is possible to prosecute an HIV-positive person for having unprotected sex without disclosure.

Such a prosecution would not be possible in England, which has a different legal system. In England, non-disclosure and transmission have to occur before a charge can be brought for grievous bodily harm.

HIV charities have expressed concern about the Scottish case.

Writing for BBC News Online, Catherine Murphy of Terrence Higgins Trust commented: “Prosecutions and the coverage they get take a heavy toll on people living with HIV and can actually serve to work against public health measures that stop HIV spreading.”

Press coverage of the man’s conviction last month used highly charged language. Many of the reports talked of HIV as being “deadly”.

None mentioned that thanks to HIV treatment, many patients with HIV in the UK have a near-normal prognosis. Nor was the availability of interventions to prevent mother-to-child transmission of HIV raised in relation to the infected woman’s decision to terminate her pregnancy. Mother-to-child transmission of HIV in the UK is now rare.

Prosecutions created an expectation that individuals with HIV would disclose to their sexual partners, said Murphy.

However, a quarter of all cases of HIV in the UK are undiagnosed, and epidemiological evidence suggests that a substantial proportion of new HIV infections originate in undiagnosed individuals, with those who have only just been infected with HIV themselves being especially infectious.

She added: “The law being used in Scotland to prosecute people for transmitting HIV was not devised with HIV in mind and has yet to establish what evidence or proof should be needed to convict. It shows little understanding of this complex issue and fails to recognise the changing nature of HIV infection. Most importantly it runs the risk of increasing HIV prejudice in Scotland and strengthening the forces that drive the epidemic."

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