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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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1 Introduction

In recent years, there has been substantial anecdotal evidence that prosecutions for HIV transmission have been on the increase across Europe - most noticeably in a series of cases in Finland, the Netherlands, Sweden, and the United Kingdom. During this same period, HIV incidence and prevalence has increased, particularly in the countries of Eastern Europe and the Western and Central Asian Republics. In light of this and high profile media coverage of HIV transmission cases, there is concern that States might increasingly choose to legislate the criminalisation of the transmission of HIV and prosecute people who transmit HIV, leading to the infringement of the human rights of people living with HIV or AIDS (PLWHA). Furthermore, such laws may be increasingly seen within the new legal framework of an enlarged European Union as a viable tool to curb conduct that carries the risk of HIV transmission, without other options being adequately considered.

These concerns have been raised against the background of a long history of debate since the beginning of the HIV epidemic on the value and appropriateness of the use of criminal law and other punitive measures in the response to the epidemic. In order to assist in the development of sound public policy and law on the question of criminal law and HIV and AIDS, UNAIDS produced in 2002 Criminal Law, Public Health and HIV Transmission: A Policy Options Paper [1]. The paper identified a number of public policy, public health, human rights and legal considerations that States should take into account when making decisions about the use of the criminal law in the context of HIV and AIDS. It recommended that criminal law should only be used in certain kinds of cases as a last resort after public health laws and policies have failed to achieve the desired goals. Furthermore, it recommended that if the criminal law is used, it should not be HIV specific, should not be applied to acts that pose no substantial risk of transmission of HIV, should not be applied to cases where the partner was aware of the defendant’s positive status and there was no deceit or coercion, should not be used for negligent transmission, and should require that the HIV positive person knew s/he was infected and knew that his/her conduct posed a significant risk of transmission of HIV.

Underpinning any response, in summary the paper recommended that:

  • Any legal or policy responses to HIV and AIDS, particularly the coercive use of State power, should be effective in the overall pursuit of public health and should conform to international human rights norms, particularly the principles of non-discrimination and of due process.
  • State action that infringes on human rights must be adequately justified, such that policy-makers should always undertake an assessment of the impact of law or policy on human rights, and should prefer the ‘least intrusive’ measures possible to achieve the demonstrably justified objective of preventing disease transmission.

In this context, the current study sought to identify, briefly describe, and analyse the law in relation to the criminalisation of HIV transmission in use at the time of the study (2004) by signatory States to the European Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms. This was done so as to (a) provide an analysis of current trends in the criminalisation of HIV transmission in Europe; (b) assist governments, non-governmental organisations and people living with HIV and AIDS in examining the compatibility and conformity of these laws with human rights principles and obligations; and (c) realise an informed and measured approach that is based on human rights and public health to the use of law for regulating conduct that may result in HIV transmission.

The study showed that there were at the time many different types of law used to criminalise the transmission of HIV. These laws range from HIV-specific laws to the use of general criminal law provisions in such cases. Some laws required intent, some did not, some criminalised only actual transmission, while other criminalised the risk of transmission. Furthermore, some laws criminalised "reckless" as well as "negligent" behaviour in addition to "intentional" behaviour. Though data were hard to come by with regard to the sex, ethnic background and legal status of those prosecuted, it appeared that a substantial number were male, often immigrants and from marginalised groups.

The study was not definitive with regard to many issues raised by the criminalisation of HIV transmission. However, enough material was gathered to raise concerns about the following:

  • Whether the laws actually deter behaviour that results in, or threatens, the transmission of HIV, i.e. whether the laws achieve valid prevention goals?
  • Whether public health measures might achieve prevention goals more effectively than the criminal law?
  • Whether HIV-specific legislation in this area is ever warranted?
  • Whether application of the law is foreseeable by those who may be prosecuted?
  • Whether an assessment is made regarding the actual level of risk of transmission being posed?
  • Whether appropriate burdens of proof are met?
  • Whether the issue of ‘consent to the risk’ is adequately taken into account?
  • Whether there is selective or discriminatory prosecution based on ethnicity, legal status or sexual orientation?
  • Whether sentences are appropriate?
  • Whether the media plays a harmful or helpful role?
  • Whether the use of the criminal law causes further stigmatisation and isolation of people living with HIV?
  • Whether various human rights of those prosecuted are violated, e.g. right to privacy, health, freedom of movement?

It is hoped that this study is one useful step in the urgent need to find answers to these questions and to examine further the appropriateness and value of the use of the criminal law in the response to the HIV epidemic.

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1. Elliot, R, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper, UNAIDS, 2002.

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