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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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Sweden

Estimated number of people living with HIV: 3,600
Number of people prosecuted for HIV transmission: Information not available
Number of people convicted for HIV transmission: 30

Applicable law: Chapter 3 of the Swedish Penal Code

Key wording in the law:

Article 122a: Transmission of especially danger illness

One who knowingly that he/she is infected by especially danger illness, transmit the illness to another who didn’t know about his/her illness, would be punished from six month to five years imprisonment.

Chapter 3, Section 5

A person who inflicts bodily injury, illness or pain upon another or renders him or her powerless or in a similar helpless state, shall be sentenced for assault to imprisonment for at most two years or, if the crime is petty, to a fine or imprisonment for at most six months. (Law 1998:393)

Section 6

If the crime referred to in Section 5 is considered gross, the sentence for gross assault shall be imprisonment for at least one and at most ten years. In assessing if the crime is gross special consideration shall be given to whether the act constituted a mortal danger or whether the offender inflicted grievous bodily harm or severe illness or otherwise displayed particular ruthlessness or brutality. (Law 1988:2)

Section 8

A person who through carelessness causes another to suffer bodily injury or illness not of a petty nature, shall be sentenced for causing bodily injury or illness to a fine or imprisonment for at most six months. (16 s1999:36)
If the crime is gross, imprisonment for at most four years shall be imposed. If the act was committed by driving a motor vehicle, special consideration shall be given, in assessing whether the crime is gross, to whether the sentenced person was under the influence of alcohol or other substance. (Law 1993:1462)

Section 9

A person who through gross carelessness exposes another to mortal danger or danger of severe bodily injury or serious illness, shall be sentenced for creating danger to another to a fine or imprisonment for at most two years.

Chapter 23, Section 1

A person who has begun to commit a crime without bringing it to completion, shall, in cases where specific provisions exist for the purpose, be sentenced for attempt to commit crime if there was a danger that the act would lead to the completion of the crime or such danger had been precluded only because of fortuitous circumstances.
Punishment for attempt shall be at most what is applicable to a completed crime not less than imprisonment if the least punishment for the completed crime is imprisonment for two years or more.

Discussion:

From the responses received, it appears that precise information about the number of people who have been prosecuted for transmitting HIV in Sweden is not known. However, around 30 people have been convicted, with the first prosecution for transmission of HIV in 1992. The Swedish Association for HIV Positive People (RFHP) says the lack of detailed information available is due to the fact that HIV positive people are prosecuted under assault laws and other laws. No distinction is made between HIV cases and all the other cases prosecuted under the same umbrella heading. According to RFHP, the media has been instrumental in informing them of cases appearing in court. In the last year, four people are known to have been prosecuted and all four were convicted.

Of the cases known to RFHP, 17 of those convicted were male. One woman was also convicted. In six of the cases transmission occurred through homosexual sex, while heterosexual sex was the mode of transmission for 12 of those convicted. According to RFHP, most of those convicted were from Africa. It lists the following as some of the countries from which those who were convicted originated: Portugal, Canada, ‘Middle East’, Sweden, Brazil, Somalia, Nigeria, Denmark, Tanzania, Niger, Uganda and Congo. Details of their occupations at the time of prosecution were not known.

Information about the sentences applicable is not available. However, RFHP indicated that the average number of years imprisonment was between five to seven years. Along with the prison sentences, those convicted are also liable to pay damages. These have been in the region of USD$100,000. According to RFHP, there is anecdotal evidence to suggest that people living with HIV and AIDS are being blackmailed into paying large sums of money in exchange for not being prosecuted. Deportation and bans from ever returning to Sweden are also applied.

Exposing another person to the risk of HIV transmission and actual transmission of the virus are both punishable.

Transmission of other sexually transmitted infections is also subject to prosecution. RFHP said they know of one case where a man was convicted for the transmission of hepatitis B.

A completed questionnaire was received the Swedish Association for HIV-Positive People.

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