Published May, 2012

Sexual Transmission or Exposure to Infection - Prosecution Policy, Crown Office and Procurator Fiscal Service of Scotland, (May 1, 2012)

This prosecutorial policy was issued by the Crown Office and Procurator Fiscal Service (COPFS) of Scotland to provide guidance on prosecutions for intentional or reckless sexual transmission of, or exposure to, sexually transmitted infections (STIs). The policy was drafted with consultation from public health officials, medical professionals and national advocacy groups, and sets forth clear guidance to prosecutors on cases where there is alleged transmission of, or exposure to, STIs. The Crown Office is one of the first prosecutor groups worldwide to provide a written policy on this issue.

Scotland does not have HIV-specific statutes, but rather prosecutes under assault (if there is evidence that the accused intentionally infected a victim) or culpable and reckless conduct (if there is no evidence of intent to cause harm but is evidence that indicates criminal recklessness). The Prosecution Policy parses out the requirements of intent for both charges, and differentiates between transmission and exposure. The majority of the document provides guidance on transmission cases, but also states that: "While recognising that culpable and reckless conduct to the danger of others is potentially criminal, in cases involving exposure to sexually transmitted infections, where there has been no resultant transmission of the infection, prosecution for the crime of culpable and reckless conduct would only be contemplated in exceptional circumstances."

This guidance provides a useful framework for other prosecutors in taking steps toward clarity and consistency in prosecutions in this area of the law. 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.