In Scotland alleged HIV exposure as well as alleged transmission can be prosecuted. It remains unclear whether disclosure in the absence of condoms is a legitimate defence to accusations of 'culpable and reckless conduct’. Scots law does not recognise consent as a defence to an assault charge, and in the absence of an HIV transmission case in Scotland where consent has been used as a defence, it is unclear whether the law would take a similar approach to reckless conduct cases. However, it was recently clarified that the use of a condom in the absence of disclosure would be a defence even if transmission subsequently occurred.
Four cases have reached the Scottish courts. Of the three men found guilty, the first was sentenced to five years; the second (also convicted of sexually transmitting hepatitis C) to nine years; and the third (also convicted on three counts of HIV exposure) to ten years in prison. A fourth man was deemed mentally incapable of standing trial and has been detained indefinitely in a psychiatric facility.
A fifth case is not included in the totals. In October 2011, an HIV-positive couple were charged for alleged HIV exposure due to biting, spitting and scratching arresting police officers. By their sentencing in December 2011, the HIV-related charges had been dropped but they still received lengthy sentences (2 years and 19 months, respectively) for breach of the peace and assault charges.