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Criminalisation of HIV transmission in Europe

A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights
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Austria

Estimated number of people living with HIV: 10,000
Number of people prosecuted for HIV transmission: Between 30 and 40
Number of people convicted for HIV transmission: Approximately 30

Applicable law: Sections 178 and 179 of the Austrian Penal Code.

Key wording in the law:

§ 178 deliberate endangerment of humans by transferable diseases

Who commits an action, which is suitable to cause the danger of the spreading of a transferable illness among humans is to be punished with imprisonment up to three years or with fine up to 360 daily rates, if the illness belongs according to its kind to even if only limited indicate or to compulsorily notifiable diseases.

§ 179 negligent endangerment of humans by transferable diseases

Who commits in § 178 with punishment threatened action negligently, is to be punished with imprisonment up to one year or with fine up to 360 daily rates.

Discussion:

From the responses received, it appears that between 30 and 40 people have been prosecuted and approximately 30 people have been convicted for transmitting HIV in Austria. The two sections of the applicable law - Section 178 and Section 179 - come under Section 7 of the Austrian Penal Code, which deals with punishable actions of endangerment to humans and the environment. The law speaks in broader language of ‘transferable diseases’. This includes infectious diseases and diseases subject to registration. It is unclear from the information received into which category HIV infection falls.

From the information supplied, it appears the first prosecution for transmission was brought in 1990. While the numbers are not yet big enough to say conclusively, it appears there is a small but steady increase in the number of prosecutions being brought.

AIDS-Hilfe gave the gender split of those convicted at eight men and 12 women while Professor Hinterhoffer, of Universitat Salzburg, put it at 25 men and 15 women. Of these, AIDS-Hilfe indicated that two were transmissions through homosexual sex and 14 by heterosexual sex. However, Professor Hinterhoffer put the division at 20 for homosexual sex and 10 for heterosexual sex.

No information was provided about the nationalities or occupations of the people convicted. Professor Hinterhoffer suggested that most were Austrian nationals.

Placing another person in danger of being infected with HIV can also be subject to prosecution. The maximum sentence applicable is three years.

Transmission of other sexually transmitted infections is subject to prosecution under the same laws.

Completed questionnaires were received from AIDS-Hilfe Salzburg and Professor Hinterhoffer, Universitat Salzburg.

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