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4 Results4.6 The Fault elementApart from Belgium, Croatia and Slovakia, where no fault element was required, i.e. infliction of harm per se was sufficient for a criminal act to be established, respondents from all the other countries specified some element of fault. This distinction has important implications for people living with HIV and those organisations representing them. Fault was categorised broadly as follows: TABLE IV: Categorisation of country's approach
Not all laws from countries distinguished culpability in the ways illustrated above. For example, in Ireland, there did not appear to be any distinction between intentional and reckless conduct. In Norway, the same punishment resulted whether the crime was committed wilfully or negligently. In the case of Poland and Romania, fault appeared to be established whenever a person was infected by someone who knew of s/he was HIV positive. In Ukraine, a distinction was made between a person who knew their HIV positive status and a person who deliberately transmitted HIV, there being a more severe penalty for deliberate transmission. In Iceland gain and high spirits were also considered as possible motives for HIV transmission. In Germany, whoever committed bodily injury with the consent of the injured person only acted unlawfully if the act was, despite the consent, contrary to good morals. It was unclear whether or not HIV transmission would be classed as contrary to good morals. 4.7 Coercive vs. ConsensualIn more than 90 per cent of cases where people were convicted for HIV transmission, the route of transmission was consensual sexual intercourse. This raised the issues whether it was appropriate or effective from a prevention point of view to place all the responsibility on the HIV positive person to protect sexual partners from HIV transmission. In Iceland, it was reported that everyone was under an obligation to ‘take all precautions against communicable disease, and to do one’s best to avoid infecting oneself or others’. Derogation from this duty apparently led to criminal sanctions against the HIV-positive person, and yet no sanction was imposed on the person who became infected through mutually agreed acts. A similar obligation to take measures to avoid HIV transmission was imposed in Georgia. In a workshop at the 9th International Conference for People Living with HIV/AIDS, Warsaw, 13 -18 August, 1999 [14] , the discussion turned on why sanctions are not imposed on those who do not heed prevention messages, particularly as many countries laud the effectiveness of their HIV prevention campaigns over the past 20 years. 4.8 Sentencing / PunishmentRespondents reported that imprisonment was the most common punishment for a person convicted of infecting another with HIV. The maximum (and most severe) sentence possible for transmitting HIV that was found within the study group was a life sentence which could be imposed in France, Ireland, Malta and the United Kingdom. In the case of the United Kingdom, the label given to the offence was that of grievous bodily harm, whereas Ireland the offence was that of serious harm. So far, it did not appear that either France or the United Kingdom had imposed a life sentence on any of the people convicted. It also appeared that most of the other countries had not imposed the maximum applicable sentence. In Germany, one person was sentenced to the maximum 10 years, but this reflected the fact that he apparently infected more than one person. Respondents from Bosnia and Herzegovina, Germany, Lithuania, the Netherlands, Romania, Serbia and Montenegro and Ukraine reported that in these countries sentences of 10 years’ imprisonment or longer can be imposed. Respondents in Armenia, Hungary, Latvia, Malta, Moldova, Norway, Portugal, Slovakia, Sweden and Switzerland reported that in these countries sentences between five and ten years’ imprisonment can be imposed. Some countries appeared to provide penalties other than prison. For example, it was reported that in Armenia a person can be punished by enforced correctional labour for exposing someone to the risk of HIV infection. In Germany, Iceland, Ireland, Portugal and Switzerland, fines can also be levied as an alternative or as an addition to imprisonment. In Moldova, one could be made to pay the cost of treatment of the infected person. It was reported that Moldova, Russia and Ukraine imposed heavier sentences on those people who infect two or more persons, or infect a juvenile. In countries such as the Netherlands, Sweden and the United Kingdom [14], it appeared that if the convicted person was found guilty of another crime in addition to that of infecting someone with HIV, the courts amalgamated the offences and imposed heavier sentences. It was reported that in Austria, Finland, Sweden, Switzerland and the United Kingdom deportation was also used as an element of punishment. In some of these cases, deportation was to countries that did not provide antiretroviral therapies. In one Finnish case, deportation resulted in the separation of a man from his wife and children. It was reported that detention and forced isolation have also been used as punitive measures for HIV transmission or as preventative measures. In Sweden, the Communicable Disease Act allows the authorities to detain persons in order to contain the transmission of infections. It was reported that of the 65 people isolated up until 1998, 62 of these were HIV positive. The average period of isolation was between six and nine months, with 12 people being isolated for more than two years. The longest case of isolation was for seven years and six months. No specific details were provided for Italy even though information received indicated that detention was imposed. In Russia, there was provision for ‘limitation of freedom for up to two years’ but no further information was provided. Continue : 5 People profile > > >
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