Northern Europe

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Denmark

Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the existing law (Section 252: “wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.

There have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.

Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have recently called for the law’s abolition.1

Estonia

Prior to 2004 at least two men were convicted of criminal HIV transmission under the existing Penal Code (Articles 118/119, "causing of severe health damage", and/or Article 121, "physical abuse"). One man was Egyptian and the other man Estonian. No further information regarding HIV-related prosecutions is currently available.

Finland

Finland prosecuted its first case in 1989. Both HIV exposure and transmission are prosecutable under existing assault or homicide laws. There have been at least twelve prosecutions and seven convictions, with a disproportionate number of prosecutions of foreign nationals, particularly those of African and Asian origin, including the most recent case.2

The longest prison sentence, however, was handed down to a 25-year-old Finnish male, who was sentenced to ten years in prison in 2008 for five counts of aggravated assault (for sexual HIV transmission), 14 counts of attempted aggravated assault (for sexual HIV exposure), and one count of rape. He was also ordered to pay the 21 female complainants a total of €330,000 in damages.3 A 2009 appeal increased his prison sentence to twelve years.4

Norway

Norway prosecuted its first case in 1991 under Section 155 of the Norwegian Penal Code. This infectious-disease law, enacted in 1902, is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents. There is no distinction between penalties for HIV exposure or transmission.

Both ‘willful’ and ‘negligent’ exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for ‘willful’ exposure or transmission and three years for ‘negligent’ exposure or transmission. At least 14 individuals have been prosecuted – all for heterosexual sex, despite the fact that most HIV transmission in Norway is the result of sex between men – and all prosecutions have resulted in convictions.

A coalition of grass-roots and civil-society organisations in Norway is currently campaigning to abolish Section 155 during the forthcoming revision of its Penal Code.5

Sweden

Despite the fact that Sweden does not have an HIV-specific law, it is likely that it has prosecuted more people living with HIV per capita for sexual HIV exposure or transmission than any other country in the world. People living with HIV are mandated to disclose their HIV status before sex, but dislosure is only an affirmative defence in HIV-exposure cases and not in cases where transmission is alleged. There have been least 50 prosecutions and 38 convictions since the first prosecution took place in 1992. The maximum sentence is two years for HIV exposure and ten years for HIV transmission, the average sentence being five to seven years, with additional damages, and deportation for non-nationals.

In 2008, the Swedish Institute for Infectious Disease Control announced it would no longer assist the police in investigations of alleged HIV exposure or transmission, although it later retracted its statement.6 In addition, public health laws require all HIV-positive individuals to disclose their status to sexual partners and practise safer sex. These have been used to forcibly isolate at least 100 people living with HIV. In 2005 the European Court of Human Rights held that Sweden had violated the right to liberty and security of an HIV-positive man forcibly detained for up to seven years.

A recent conference highlighted the human rights concerns of Sweden’s legal and public health policies. It heard that a disproportionate number of those convicted are from Africa; that non-nationals receive longer prison sentences; and anecdotal evidence that suggests HIV-positive people are being blackmailed in exchange for not being prosecuted.7

United Kingdom

Prosecutions in the United Kingdom take place under existing assault laws. These are similar for England, Northern Ireland and Wales, although Scotland has completely different laws. The first UK prosecution took place in Scotland in 2001, followed by England (2003) and Wales (2005). There have been no prosecutions in Northern Ireland.

Scotland

There is no legislation that specifically criminalises reckless or intentional HIV transmission in Scotland. The criminal law was first used in 2001 to find an individual criminally responsible for HIV transmission under the Scottish common law offence of ‘culpable and reckless conduct’. Since then, the reckless transmission of HIV alone – as well as HIV and hepatitis C together – has been prosecuted under this law. Since Scottish law focuses on behaviour (unlike English law which focuses on the result of such behaviour), exposing others to the risk of HIV transmission ('HIV exposure'), can, and has, also been prosecuted.

It remains unclear whether disclosure in the absence of condoms is a legitimate defence to accusations of 'culpable and reckless conduct’. Scots law does not recognise consent as a defence to an assault charge,8 and in the absence of an HIV transmission case in Scotland where consent has been used as a defence, it is unclear whether the law would take a similar approach to reckless conduct cases. However, it was recently clarified9 that the use of a condom in the absence of disclosure would be a defence even if transmission subsequently occurred. Four cases have reached the Scottish courts. Of the three men found guilty, the first was sentenced to five years;10 the second (also convicted of sexually transmitting hepatitis C) to nine years;11 and the third (also convicted on three counts of HIV exposure) to ten years in prison.12 The fourth man was deemed mentally incapable of standing trial and has been detained indefinitely in a psychiatric facility.13

England, Northern Ireland and Wales

A 19th-century law can be used to find an individual culpable for HIV transmission in England, Northern Ireland (NI) and Wales. Two sections of the Offences Against the Person Act 1861 (OAPA 1861), relating to ‘grievous bodily harm’, can be used prosecute HIV transmission: Section 18, 'intentional transmission' and Section 20, 'reckless transmission'. Whilst it is also possible to be charged with 'attempted intentional transmission', there is no such charge as 'attempted reckless transmission’. So far, all prosecutions that have reached the courts were for 'reckless transmission'.

Although, to date, only 13 'reckless transmission' prosecutions have reached the English courts (plus one prosecution in Wales and none so far in NI), it is believed that many more individuals – possibly hundreds – have been arrested and investigated.14 There have been eleven convictions. The longest prison sentence was for ten years (for infecting three complainants); sentences for infecting one complainant have ranged between two and four-and-a-half years. Informed consent is an affirmative defence, although it is still unclear whether condom use is a defence in the absence of informed consent, if transmission ensues.

Policy15 and prosecutorial guidelines16 produced by the Crown Prosecution Service in 2008 have clarified some of the uncertainties created by two Appeal Court judgements17 regarding under which circumstances people living with HIV could be charged for 'reckless' grievous bodily harm. Evidential issues – notably difficulties proving that the accused infected the complainant(s) and which have resulted in many cases being dropped18 and at least three individuals being acquitted19 – are highlighted in the CPS documents.

Written guidance for healthcare workers, first produced in 2005, has recently been updated.20 Written guidance for individuals living with HIV, first produced in 2009, has also recently been updated.21 Written guidance for police investigators was produced for the first time in 2010.22

References

  1. Pederson RM Loven om hiv virker ikke. Danish Broadcasting Corporation, 29 December 2008
  2. YLE.fi Police suspect dancer of deliberately spreading HIV. 24 February, 2010
  3. Bernard EJ Finland: young man sentenced to ten years for HIV transmission, exposure. Criminal HIV Transmission, 27 August 2008
  4. Bernard EJ Finland: Appeal court increases Hakkarainen sentence. Criminal HIV Transmission, 9 June 2009
  5. POZ Norwegian Manifesto Fights HIV Criminalization. 10 March, 2009
  6. Bernard EJ Sweden: Health Agency Criticised for not co-operating with Police. Criminal HIV Transmission, 28 October 2008
  7. HIV Sweden HIV and criminal law. Stockholm, 9 June 2009
  8. Roberts M HIV crimes - lawyers' views. BBC News Online, 19 September 2006
  9. Chalmers J HIV convictions exceptional in UK. BBC News Online, 7 February 2007
  10. Fieldhouse R No decline in HIV testing in Scotland following Stephen Kelly case. www.aidsmap.com, 10 July 2002
  11. Bernard EJ Man sentenced to nine years for 'reckless' sexual transmission of HIV and HCV in Scotland. www.aidsmap.com, 5 April 2007
  12. Carter M Ten-year sentence in Scottish HIV prosecution. www.aidsmap.com, 26 February 2010
  13. Dodds C et al. Grievous harm? Sigma Research, 2005
  14. Terrence Higgins Trust Policing Transmission: A review of police handling of criminal investigations relating to transmission of HIV in England & Wales, 2005-2008. London, 2009
  15. Crown Prosecution Service (CPS) Policy for Prosecuting Cases Involving the Intentional or Reckless Sexual Transmission of Infection. CPS, available at: www.cps.gov.uk/legal/h_to_k/intentional_or_reckless_transmission_of_sexual_infection, (date accessed: 19 August 2010) , 2008
  16. CPS Legal guidance: intentional or reckless sexual transmission of infection. London, March 2008
  17. Weait M Intimacy and Responsibility: the criminalisation of HIV transmission. Abingdon, Oxon: Routledge-Cavendish, 2007
  18. THT Unpublished data. From personal correspondence with the author, 2010
  19. Bernard EJ Reckless HIV transmission case dismissed due to insufficient evidence. aidsmap.com. Available at www.aidsmap.com/page/1429552/, 11 February 2008
  20. Phillips M et al. HIV Transmission, the Law and the Work of the Clinical Team. British HIV Association (BHIVA)/British Association of Sexual Health and HIV (BASHH), 2010
  21. NAT/THT Prosecutions for HIV Transmission: a guide for people living with HIV in England and Wales. April, 2010
  22. NAT/Association of Chief Police Officers (ACPO) ACPO Investigation Guidance relating to the Criminal Transmission of HIV. London, NAT, 2010

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A writer and advocate on a range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV Treatment Update. To visit Edwin's blog and respond to posts click here.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.