The Netherlands
| Estimated number of people living with HIV: |
19,000 |
| Number of people prosecuted for HIV transmission: |
Information not available |
| Number of people convicted for HIV transmission: |
11 |
Applicable law:
Articles 300 –303 of the Criminal Code. Article 82 brings HIV transmission within the meaning of the aforementioned articles. Article 45 penalises the ‘criminal attempt’. This means that actual transmission does not need to occur for HIV-risk behaviour to fall under the scope of the Criminal Code. In fact, in only one case was transmission believed to have taken place by the court in question.
Key wording in the law:
Article 300.
(1) Singular physical abuse will be punished with detention of at the most two years or a fine of the fourth category.
(2) If this fact causes grievous bodily harm, the perpetrator will be punished with at the most four years of detention or a fine of the fourth category.
(3) If this fact causes death, the perpetrator will be punished with at the most six years of detention or a fine of the fourth category.
(4) Causing intentional detrimental effect on somebody’s health is equalised to abuse.
300 (5) An attempt of abuse under this article is not punishable.
Article 301.
(1) Planned physical abuse will be punished with at the most three years of detention.
(2) If this behaviour causes grievous bodily harm, the perpetrator will be punished with at the most six years of detention or a financial fine of the fourth category.
(3) If this abuse will cause death, the perpetrator will be punished with at the most nine years of detention or a fine of the fifth category.
Article 302.
(1) He who causes intentional grievous bodily harm will be punished with at the most eight years of detention or a fine of the fifth category.
(2) If this fact will cause death, the perpetrator will be punished with at the most ten years of detention or a fine of the fifth category.
Article 303.
(1) Grievous bodily harm, committed with premeditated intention will be punished with at the most twelve years of detention or a fine of the fifth category.
(2) If this fact will cause death, the perpetrator will be punished with at the most fifteen years of detention or a fine of the fifth category.
Article 82.
(1) Under grievous bodily harm is comprised: illness that does not offer any chance on complete healing and will cause continuous disability for working or continuous disability to hold official functions, as well as spontaneous abortion or death of a foetus.
Article 45.
(1) An attempt to crime will become punishable if the intention of the perpetrator will have manifested itself by a start of execution of the crime.
(2) the maximum of the punishments for attempts will be reduction of the punishment by one third.
Discussion:
From the responses received, it appears no precise information about the number of people prosecuted for HIV transmission in the Netherlands is available. However, to date, it appears 11 people have been convicted. The first two prosecutions were brought in 1989. There were no more prosecutions until 2001 when the current spate of prosecutions started. There have been two prosecutions between Sept. 2003 and Sept. 2004; both led to convictions.
All of the people convicted were male. All but one of these were born in the Netherlands, the one exception being of Turkish origin. In four or five of the cases, transmission occurred through homosexual sex. In another four cases transmission occurred through heterosexual sex. The mode of transmission in the other two cases was unavailable or not known. Most of those convicted were living on disability benefits, some held administrative positions and one was a convicted blackmailer.
Exposing another person to the risk of HIV transmission is also subject to prosecution. The severest sentence applicable is found in Section 303 (12 years’ imprisonment, rising to 15 years if the infected person dies).
Transmission of other sexually transmitted infections is subject to prosecution.
A completed questionnaire was received from Hiv Vereniging Nederland.
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