Scotland: New guidance on prosecutions clarifies law, recognises treatment's impact on infectiousness

On May 1st, the Crown Office and Procurator Fiscal Service (COPFS) published their Guidance for Scotland on 'Intentional or Reckless Sexual Transmission, or Exposure to, Infection'.

According to COPFS, the policy aims to "provide guidance to prosecutors but also provide clarity and consistency about this area of the law."

As well as being helpful in Scotland, the guidance should also be a useful educational and advocacy tool for those many other jurisdictions around the world that prosecute alleged HIV exposure as well as transmission.

Scotland is only the second jurisdiction in the world that uses general criminal law for (mostly) HIV-related prosecutions to produce such guidance. They were a direct result of the Crown Prosecution Service (CPS) for England and Wales' policy and guidance, first published in March 2008 and updated in July 2011.  In fact, the COPFS guidance specifically states that

where possible, COPFS has sought to reconcile our policy and practice with the policy in England and Wales.

The CPS policy and guidance came about through a process initiated by key individuals from civil society although they are 'owned' and produced by the CPS. Like the CPS guidance, the COPFS guidance was advocated for by some of the same key individuals who were also consulted during the process. Unlike the CPS guidance, however, there was no public consultation.

THT, which advocated for, and were consulted on the guidance, along with NAT and HIV Scotland, welcomed the guidance with cautious pragmatism.

Catherine Murphy, Head of Public Affairs for the Terrence Higgins Trust, said: “Crown Office has a duty to prosecute criminal behaviour, but it also has a responsibility to ensure that the law is fair and fit for purpose. We hope this policy will provide greater clarity on a complex and highly sensitive issue. For good public health reasons people with HIV must be able to seek advice on sexual health issues without fear of being reported to the police. Nor should they be subjected to unjustified investigations because the law is vulnerable to misinterpretation by police and the courts.

Being consulted on, but not 'owning' the guidance, gave NAT, especially, the freedom to be quoted in the official COPFS press release as being supportive of the guidance but to highlight their concerns in their own press release, which also led to a news story in The Herald with the headline "Fears raised over 'punitive approach' to HIV exposure". In their own press release, NAT's Executive Director, Deborah Jack states

The Guidance allays many of our most significant worries - but we do still hope that a way can be found to end prosecutions for exposure to risk of HIV infection. Such prosecutions unjustly target people with an HIV diagnosis with all the responsibility for safer sex, despite the fact most transmissions are from the undiagnosed. They also encourage fear and secrecy rather than honesty and openness as we talk about sex - and so harm public health.'

Like the CPS guidance, the COPFS guidance is not HIV-specific despite the fact that all four prosecutions of sexual transmitted infections in Scotland so far have been for HIV (although Giovanni Mola was convicted of both HIV and Hepatitis C transmission). This was welcomed by the US Center for HIV and Policy in their note on the guidance, which states

In a particularly positive development, the guidelines do not single out HIV for special treatment, unlike the dozens of HIV-specific statutes that exist and are enforced in the United States.

Although the guidance has been broadly welcomed by civil society organisations working on HIV in Scotland (and elsewhere) they are a pragmatic response to an unwelcome situation. Guidance cannot change laws, but it can clarify uncertain aspects mitigating the harm of the overly-broad application of the criminal law.  (However one area not covered in this guidance are prosecutions and enhanced sentencing for spitting, biting and/or scatching whilst HIV-positive.  Scotland has had several of these recently, including this case reported today).

There is no legislation that specifically criminalises sexual HIV (or other STI) transmission in Scotland. Although it is possible to prosecute alleged intentional transmission as assault, all cases so far have been for 'reckless' exposure or transmission under the Scottish common law offence of ‘culpable and reckless conduct’.

Until the guidance was released yesterday it was unclear whether disclosure in the absence of condoms could be seen as a legitimate defence to accusations of 'culpable and reckless conduct’ (for alleged sexual exposure or transmission) because Scots law does not recognise consent as a defence to an assault charge.  The guidance has now clarified that prosecutions "will be unlikely" if disclosure of known HIV-positive status has taken place.

Importantly, the guidance has also clarified that alleged sexual HIV exposure charges will not be filed if the accused is on treatment with an undetectable viral load and was counselled that this meant there was a low risk of transmission. Specifically, the guidance states that

Prosecution will be unlikely where the following circumstances apply:

• The accused did not know that he/she was HIV positive
• The accused did not understand how HIV is transmitted
• The accused disclosed his or her HIV positive status to the victim
• The accused took reasonable steps to reduce the risk of transmission, for example, by using recommended precautions or avoiding higher risk acts
• The accused was receiving treatment and had been given medical advice that there was a low risk of transmission or that there was only a negligible risk of transmission in some situations or for certain sexual acts

Prosecution will be likely where the following circumstances apply:

• The accused deliberately misled or concealed information from the victim
• The accused did not attempt to reduce the risk of transmission, for example by failing to take prescribed medication or by failing to follow particular medical advice
• The victim was particularly vulnerable in some way
• There is evidence that the accused had intentionally embarked on a course of flagrant conduct

Download 'Sexual Transmission or Exposure to Infection - Prosecution Policy' from the COPFS website.