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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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Belgium

Estimated number of people living with HIV: 10,000
Number of people prosecuted for HIV transmission: 0
Number of people convicted for HIV transmission: 0

Applicable law: Article 421, Belgian Penal Code

Key wording in the law:

Article 421 du Code pénal :

« celui qui aura volontairement ou non causé à autrui une maladie ou incapacité de travail personnel, en lui administrant des substances qui sont de nature à donner la mort ou à altérer gravement la santé. »
(our unofficial translation : anyone who whether voluntarily or not causes sickness that makes another incapable of work by giving him or her substances that can cause death or greatly alter their health...)

Laurette Onkelinx, Ministre de la Justice, Question parlementaire N° 2673, Mai 2004 :

« L’interprétation large des termes « administrer » et « substances » permet d’inclure la transmission du virus HIV dans le champ d’application de cet article. »

Discussion:

From the responses received, it appears there have been no prosecutions to date for the transmission of HIV in Belgium. Sensoa reported knowing of unsuccessful attempts to initiate prosecution. As a result, Sensoa believe that HIV transmission might not be prosecutable under Belgian law. However, they and the Scientific Institute of Public Health have indicated that the wording of Article 421 of the Penal Code could be sufficient for a successful prosecution. In answer to a question raised in the House of Representatives on the matter, the Minister of Justice confirmed that there was enough scope within existing legislation to punish such a crime. He said, however, that he doubted the murder, manslaughter or poisoning laws would be appropriate. (Parliamentary Question No. 2673 May 2004)

Only actual transmission of HIV to another person is subject to prosecution. Information on the applicable sentences was not available.

Transmission of other sexually transmitted infections is not subject to prosecution.

Completed questionnaires were received from Sensoa and the Scientific Institute of Public Health.

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