Swiss court accepts that criminal HIV exposure is only 'hypothetical' on successful treatment, quashes conviction (updated)

Edwin J. Bernard
Published: 25 February 2009

In the first ruling of its kind in the world, the Geneva Court of Justice has quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted of HIV exposure by a lower court in December 2008, after accepting expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000.

Note: This is a revised version, updated on March 10th, clarifying information included in the first edition.

The case began in Lausanne in March 2006. The man, originally from the Democratic Republic of the Congo, was convicted of having unprotected sex without disclosing his HIV status to a female complainant. Although the woman was not infected, Article 231 of the Swiss Penal Code allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. Individuals can also be prosecuted under Article 122, for “an attempt to engender grievous bodily harm”.

The man was also found guilty of several other crimes, including theft, fraud and sexual harassment, and was sentenced to three years in prison. A February 2007 appeal reduced this to 28 months.

A second complaint last year led to the man standing trial again, in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk.

Although the man's lawyer, Nicole Riedle, had entered the statement by the Swiss Federal Commission for HIV/AIDS into evidence, and Geneva's deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing in order to consult with the Commission, the lower Geneva court declined to accept any further evidence and he was sentenced to 18 months in prison in December 2008.

Late last month, Mr Bertossa told the Geneva Court of Justice that he was persuaded by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000 and that – under the circumstances – he wanted to drop the charges.

On Monday, the Geneva Court of Justice acquitted the man, who was freed after spending almost three months in prison.

Significantly, it was Geneva’s deputy public prosecutor, Yves Bertossa, who called for the appeal. He told Le Temps that despite the fact that there is still some debate regarding the residual risks of transmission in people on successful treatment this should not influence justice: "One shouldn't convict people for hypothetical risks,” he said.

Professor Hirschel told aidsmap that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues were motivated to issue their January 2008 statement.

Deborah Glejser of Swiss civil society organisation, Groupe SIDA Geneve, told aidsmap that although the law allows for prosecutions for unprotected sex even when disclosure has taken place, in practice, prosecutions for HIV exposure usually only take place when there is no disclosure, and that a suspended sentence (for a first offence with no aggravating circumstance) is the norm.

Switzerland is made up of 26 cantons, of which Geneva is considered to be the most “liberal”, according to Ms. Glejser. However, since there is no real centralised information about cases, it is not easy to give a comprehensive picture of the pattern of prosecutions and sentences across Switzerland.

She added that Monday’s ruling suggests that, in Switzerland, effectively treated HIV-positive individuals should no longer be prosecuted for having unprotected sex. Having already been contacted by advocates from around the world, she hoped that this ruling will have consequences for other jurisdictions that have HIV exposure laws.

Last May, a five member US Court of Appeals for the Armed Forces panel discussed the effect of treatment on transmission following the appeal of an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. Although the majority did not agree, and did not allow the accused soldier’s guilty plea to be set aside, two members of the panel found the medical expert’s testimony – that it was highly unlikely that the soldier could have infected either women because of his low viral load – valid enough to question HIV exposure laws.

And last July, a Canadian court explored the Swiss statement following a submission from Clato Mabior’s defence team that, at the time he had unprotected sex with six women without disclosing his HIV status to them, he did not believe he was infectious. Although expert testimony concluded that Mr Mabior may have been uninfectious for some of the time, this was not enough to convince the judge, who noted that neither the CDC nor WHO/UNAIDS agreed with the Swiss, and that the crimes of which Mr Mabior was accused took place prior to there being any public statement on the effect of treatment on transmission.

Following Monday’s ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws.”

Thomas Lyssy from the Swiss AIDS Federation, told aidsmap that they were “very pleased with the judgment of the court. We certainly hope that this precedent will be followed in other Swiss cantons in future cases of a comparable nature.”

Community Consensus Statement on Access to HIV Treatment and its Use for Prevention

Together, we can make it happen

We can end HIV soon if people have equal access to HIV drugs as treatment and as PrEP, and have free choice over whether to take them.

Launched today, the Community Consensus Statement is a basic set of principles aimed at making sure that happens.

The Community Consensus Statement is a joint initiative of AVAC, EATG, MSMGF, GNP+, HIV i-Base, the International HIV/AIDS Alliance, ITPC and NAM/aidsmap
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