Is it criminal for a person who knows he/she is HIV positive to have unprotected sex with another person without revealing HIV positive status? Also, please consider the question: assuming one has legally confidential knowledge of someone else's HIV positive status, is there any way to act on the possible moral or ethical duty to warn that person's new partner without breaching confidentiality?
I am the ADA in our county representing CPS and a case worker asked me these questions. Any thoughts would be appreciated.

Speaking only to the duty of confidentiality: A person who is not a health care provider has no special duty of confidentiality. That is, the duty to maintain confidentiality extends to persons in a fiduciary relationship, such as treatment provider to patient. And, how would a lay person, not in a position to be privy to hematological results, know - with any degree of certitude -- that a person is HIV, unless this status was disclosed to him/her by the infected person?

Re-reading your post raised the second issue: The duty to maintain confidentiality. If such a duty exists, and that was your presumption, the only category of persons having such a duty is a treatment provider. In such a circumstance, it would require a bold step for any such person to have such surety that the patient was soon to have undisclosed, unprotected, sexual contact with another person, to violate a confidentiality rule, unless it is by statute under the rubric of H&S 81.051, wherein an employee of a partner notification program makes the notification, without requirement that he/she disclose the source of the information.

Floyd, first thanks for taking the time to respond, especially to the harder question re the confidentiality. CPS knows the diagnosis from our access to medical records. So it is CPS case confidentiality we are dealing with. I plan to check with the CPS regional attorney too. It was suggested to me that since failure to disclose HIV status and having sex (does the victim have to be infected from the encounter for it to be criminal?) is a crime, then doing it with an unaware partner would be an ongoing crime. That would get one out of the attorney/client confidentiality, and perhaps the CPS confidentiality. And then there is HIPPA; scares me because I am too unfamiliar. I will check the statute and cases but if anyone has the quick answer I will take it. I used to say my first and quickest legal research tool was the telephone (not really). Now it could be our user forum. I apologize for being lazy.

Look at the H&s on this issue, unless there is a politically based rule which I did not search prohibiting same with regard to HIV - the treatment provider making a diagnosis based on Elissa and Western Blot tests is obligated to advise the Dept. of Health under the communicable disease statute, which then does have the right to notify a named or known partner.

Thanks to Floyd Jennings and A. Diamond for their very helpful responses to my post.
Stephen