4 Results

4.2 Transmission of HIV: Criminal or Not Criminal

A starting point for the questionnaire was to separate countries which criminalised HIV transmission from those that did not. However, from the responses received, it was evident that a third category existed: respondents that could not say categorically whether or not HIV transmission could be prosecuted in their country. Respondents from Bosnia and Herzegovina reported that they were in this position; however, responses from others, such as the United Kingdom, showed that the situation was apparently not clear until the first conviction was obtained.

Table II: Overview of the European situation (opens in a new window)

4.3 Criminal conduct

In the case of HIV transmission, the conduct by which transmission can occur is generally not in itself deemed to be criminal, with the exception of injecting drug use, and in some jurisdictions, sex between men and/or anal sex. There is the theoretical ‘man threatening people with a needle filled with HIV infected blood’, but this conduct would be illegal even if the blood contained was not infected with HIV. Of the countries analysed, no reports were made of such incidents. Equally, there were no reports of a conviction for HIV transmission from mother to child. The bulk of the convictions apparently were applied to alleged transmission during consensual sex.

While a single act of intercourse could lead to infection, the risk of transmission can vary greatly. The risks are estimated to range between 1 in 10 and 1 in 1600 for unprotected anal sex among men, and between 1 in 667 and 1 in 1000 for any one act of vaginal sex [9]. This raises legal and evidentiary issues regarding whether the risk of actual transmission is a significant one and/or whether transmission has indeed occurred during the sexual acts under consideration. The question must be asked: Is the prosecution of individual cases of HIV transmission also a game of chance?

4.4 Transmission vs Exposure

When considering the harm associated with HIV transmission, most obviously this would relate to the actual infection of a person with HIV. However, respondents reported that in at least 15 countries (see table below) the law also provides for the criminalisation of exposing another person to the risk of HIV infection.

Table III: Transmission vs exposure

In Armenia, it appears from information received that the lesser harm of exposing another to ‘evident risk’ was reflected in the lesser sentence imposed (correctional labour). In Norway, there appeared to be no distinction made between actual transmission and exposure, both being punishable with the same sentence. In Russia, placing another person ‘under the risk of HIV transmission’ appears to be punishable by limitation of freedom for up to three years, while infection by a person who is aware of their HIV positive status is punishable by imprisonment for up to five years. Most of the countries that punished exposing another person to the risk of HIV infection reported having specific legislation criminalising HIV transmission. Exceptionally, Georgia had HIV specific legislation, yet HIV exposure was not criminalised.

4.5 Labelling of the criminal act

In countries without HIV specific legislation, it was reported that prosecutions for the transmission of HIV were brought under a variety of different laws. The labels used could be broadly categorised in three groups, although similar labelling does not imply uniformity of sanction. In some countries, prosecution for the transmission of HIV could be brought under more than one law, transcending this categorisation (see Finland). The three categories and their variations were:

1. Transmission of contagious diseases / sexually transmitted infection / causing injury to health

• Austria - endangerment by transferable disease
• Belgium - causing sickness
• Bosnia and Herzegovina - transmission of communicable disease
• Croatia - infecting with a venereal disease
• Czech Republic - transmission of disease
• Estonia - causing health damage
• Iceland - spreading contagious disease
• Ireland - serious harm
• Liechtenstein - endangerment through disease
• Lithuania - made ill or injured
• Netherlands - cause detrimental effect on someone’s health
• Portugal - offend the health
• Sweden - causing disease
• Switzerland - spreading human diseases

2. Bodily harm / Assault / Grievous bodily harm / Aggravated assault

• Croatia - inflict serious bodily injury
• Finland - assault, aggravated assault
• France - bodily harm
• Germany - bodily injury, dangerous bodily injury, serious bodily injury
• Hungary - bodily harm
• Liechtenstein - bodily harm, grievous bodily harm
• Netherlands - grievous bodily harm
• Sweden - assault, bodily injury
• Switzerland - grievous bodily harm
• United Kingdom - inflicting grievous bodily harm

3. Manslaughter / Killing / Poisoning / Homicide

• Finland - manslaughter, killing, homicide
• France - poisoning
• Sweden - mortal danger

While it is not surprising that there are many different formulations of the laws concerning the criminalisation of HIV transmission, these differences go well beyond those relating to language and labelling. The label attached to a crime is important because it goes to the foreseeability of criminal sanctions for certain behaviour. For the same ‘harm’ (HIV transmission), the application of different labels have resulted in a wide divergence with regard to the foreseeability of the crime, the degree of sanction imposed, and/or the moral condemnation involved.

Continue : 4.6 The Fault element > > >

< < < Back one page

FOOTNOTES: Click the corresponding number to return to your place in the text

9. "Detention or Prevention", AIDS FONDS, 2004

Responsibility for the accuracy and interpretation of the data rests with THT and GNP+ Europe. If you would like to provide further information for updates for this survey or make comments please go to comments.

You are free to circulate / disseminate / reproduce this information as long as the source of the original is quoted.