5 People profile

5.1 Overview

It was reported that at least 130 people have been convicted for transmitting or exposing another person to HIV infection in the countries researched. As this was a low figure in relation to the total number of people living with HIV in the study area, it appeared that the use of the criminal law in the case of transmission of HIV was relatively rare. From the replies received, respondents could not always specify either the gender of the offender or the mode of transmission of HIV in all countries.

5.2 Gender

From the countries for which data was received concerning the gender of the offender, details were provided for 84 people convicted, 77 of who were male, and seven female. Of the sample group of offenders, this equates to 92 per cent male and 8 per cent female offenders. The respondents from Switzerland (with more than 20 convictions) reported that the majority were men, but did not give a specific breakdown. Respondents gave several reasons for the gender disparity. The most common was that, more often than not, women were seen as victims and not the cause of harm. It was also suggested that the nature of the media reporting of the cases had transformed what were sexual acts involving shared and equal responsibility between two consenting adults into an act done ‘by a man to a woman’. The man was reported to have ‘repeatedly had sex with the woman’ when, in fact, it could be said that they repeatedly had sex together.

5.3 Modes of HIV transmission

Sexual transmission

In the majority of the cases reported, HIV transmission was alleged to have occurred through heterosexual sex. In all countries except Austria and the Netherlands, it appeared that more people were convicted for HIV transmission through heterosexual sex than for any other mode of transmission. In Croatia, Italy, Norway and the United Kingdom, it appeared that all convictions were for transmission through heterosexual sex. Respondents from Sweden and Switzerland did not provide information concerning modes of transmission. However, in Switzerland, there was a reported rise in the number of men who have sex with men (MSM)-related HIV transmission prosecutions. It was suggested that this was in part due to prejudice by legislators as reflected in the language used by judges regarding ‘promiscuous lifestyles’.

In countries such as Norway and the United Kingdom, epidemiological studies indicated that homosexual transmission was most common, yet it was reported that all the people convicted had transmitted the virus through heterosexual sex. One reason for this could have been reluctance by those in the gay community to involve their community in the courts and undergo the scrutiny of the press. It could also be suggested that public health campaign messages were prominently targeted to these communities, and those infected did not feel that they should blame anyone but themselves. Further, it could be suggested, rightly or wrongly, that gay relationships were perceived to be based on more equal power relations and that therefore, partners were less likely to be seen as vulnerable or susceptible to deception.

Mother-to-Child transmission

There were no convictions reported for HIV transmission from mother to child. This was perhaps linked to the sentiment expressed above - women were not seen as causing harm, or the woman in question was seen as having already suffered enough by having given birth to a baby infected with HIV. It may be useful to note that in some legal systems there would be no statute of limitations on a child asserting that a case ought to be bought at a later date, or a court or other competent authority acting on behalf of the child.

5.4 Nationality and occupation of the people convicted

Data on nationality and occupation of the people convicted were the least readily available. From the respondents in the nine countries that were able to provide this information, it appeared that in three countries more foreigners were convicted than were nationals of that country.

Information about the occupation status of those convicted was requested to give an indication of the social and economic status of those convicted. This information was not available to the respondents from Austria, Denmark, Germany, Sweden and Switzerland. Because Sweden and Switzerland between them represent nearly 45 per cent of the total number of people convicted, firm conclusions cannot be drawn. However, based on their financial, nationality and occupational and migrant status, the majority of those convicted in seven countries out of the sample of nine could be regarded as being in vulnerable social and economic positions (see table below).

TABLE V: Nationality and occupation of those convicted

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