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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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Finland

Estimated number of people living with HIV: 1,500
Number of people prosecuted for HIV transmission: Approx. 6-12
Number of people convicted for HIV transmission: Approx. 7

Applicable law: The Finnish Penal Code Chapter 21 (Homicide and Bodily injury)

Key wording in the law:

Section 1 - Manslaughter (578/1995)

(1) A person who kills another shall be sentenced for manslaughter to imprisonment for a fixed period of at least eight years.
(2) An attempt is punishable.

Section 3 - Killing (578/1995)

(1) If the manslaughter, in view of the exceptional circumstances of the offence, the motives of the offender or other related circumstances, when assessed as a whole, is to be deemed committed under mitigating circumstances, the offender shall be sentenced for killing to imprisonment for at least four and at most ten years.
(2) An attempt is punishable.

Section 5 - Assault (578/1995)

(1) A person who employs physical violence on another or, without such violence, damages the health of another, causes pain to another or renders another unconscious or to a comparable condition, shall be sentenced for assault to a fine or to imprisonment for at most two years.
(2) An attempt is punishable.

Section 6 - Aggravated assault (654/2001)

(1) If in the assault:
(1) grievous bodily injury or serious illness is caused to another or another is placed in mortal danger,
(2) the offence is committed in a particularly brutal or cruel manner, or
(3) a firearm, edged weapon or other comparable lethal instrument is used and the offence is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated assault to imprisonment for at least one year and at most ten years.
An attempt is punishable.

Section 8 - Negligent homicide (578/1995)

A person who through negligence causes the death of another shall be sentenced for negligent homicide to a fine or to imprisonment for at most two years.

Section 9 - Grossly negligent homicide (578/1995)

If in the negligent homicide the death of another is caused through gross negligence, and the offence is aggravated also when assessed as a whole, the offender shall be sentenced for grossly negligent homicide to imprisonment for at least four months and at most six years.

Section 10 - Negligent bodily injury (578/1995)

A person who through negligence inflicts not insignificant bodily injury or illness on another shall be sentenced for negligent bodily injury to a fine or to imprisonment for at most six months.

Section 11 - Grossly negligent bodily injury (578/1995)

If in the negligent bodily injury the bodily injury or illness is inflicted through gross negligence, and the offence is aggravated also when assessed as a whole, the offender shall be sentenced for grossly negligent bodily injury to a fine or to imprisonment for at most two years.

Section 5 - Imputability

(1) Intent or negligence are conditions for criminal liability.
(2) Unless otherwise provided, an act referred to in this Code is punishable only as an intentional act.
(3) What is provided in subsection 2 applies also to an act referred to elsewhere in law for which the statutory maximum sentence is imprisonment for more than six months or on which the penal provision has been issued after this law entered into force.

Discussion:

From responses received, it appears that between six to twelve people have been prosecuted for HIV transmission in Finland. Of these, the Ministry of Justice estimates that between five and ten of these cases have led to convictions. AIDS and Mobility puts the number of people convicted at about seven, while the Finland AIDS Council puts it at about five. One department of the Ministry of Justice provided the full list of laws listed above as being applicable to HIV transmission. However, another department only listed Sections 1, 6, 9 and 11 as being applicable. Finland AIDS Council listed Sections 5 and 6 and added to the list Section 13 on Imperilment. Section 13 reads:
A person who intentionally or through gross negligence places another in serious danger of losing his/her life or health, shall be sentenced, unless the same or a more severe penalty for the act is provided elsewhere in the law, for imperilment to fine or to imprisonment for at most two years.

The reason given by all the respondents for not being definitive in the numbers of people prosecuted and convicted is that these statistics are not kept separate from the umbrella offence under which they are prosecuted.

This, in turn, has led to conflicting interpretations of those being prosecuted. One department of the Ministry of Justice estimated that of those prosecuted, between five to nine were male and one was female. They also report that in only one of these cases was transmission through homosexual sex; the other cases were the result of transmission through heterosexual sex. AIDS and Mobility agree that most of the people convicted have been heterosexual males. The Finland AIDS Council says at least one of the cases involved transmission through injecting drug use. According to one of the departments of the Ministry of Justice, many of the people prosecuted were foreign nationals, particularly of African and Asian origin. According to another, the majority may have been Finnish. AIDS and Mobility indicates that immigrants have been prosecuted at a higher rate than Finns and that most have been in vulnerable social and economic positions. The group includes individuals from Rwanda, United States, Thailand and Ghana. There have been two prosecutions in the last year, both of which led to the people involved being convicted.

AIDS and Mobility lists the occupations of the people prosecuted as students, spouses and unemployed. The list from the Finland AIDS Council includes musicians, a housewife and some people being unemployed.

Only actual transmission of HIV to another person is subject to prosecution. The maximum sentence applicable is ten years’ imprisonment.

Transmission of other sexually transmitted infections is subject to prosecution.

Completed questionnaires were received from AIDS and Mobility, Finland AIDS Council and from two separate departments of the Ministry of Justice. Finnish Body Positive also contributed to the study.

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