Western Europe

Austria began prosecuting criminal HIV exposure and transmission in 1990 under existing laws, making it a crime to intentionally or negligently “commit an act likely to cause the danger of spreading a transmissible disease”. At least 40 people with HIV have been prosecuted, and at least 30 convicted. Disclosure of HIV-positive status prior to sex is not a defence, and so, in essence, Austria criminalises all sex by HIV-positive individuals, including oral sex and sex with condoms. Since the publication of a paper by the Austrian AIDS Foundation¹ in 2005, critiquing recent cases of prosecutions for oral sex and sex with condoms, it appears that the legal arguments have focused on the individual level of risk during unprotected sex, focusing on viral load.

France’s Senate proposed an HIV-specific law in 1991, criminalising HIV transmission without disclosure, but the National Assembly deleted the amendment. The first criminal HIV-transmission case were prosecuted in 1996 under existing poisoning, ‘administration of dangerous substances’ and/or bodily harm laws. Case law has now established that sexual fluids are not poisons, so the anti-poisoning law no longer applies. Although HIV exposure without disclosure may also be subject to criminal sanctions, most of the 16 convictions have been for transmission without disclosure under the law criminalising “administering a harmful substance causing disability or permanent disability” (French Penal Code, Articles 222-15 and 223-1).

A conviction was also obtained, in 2005, for biting a police officer, with a three-year prison sentence. The issue has caused immense debate within the French HIV sector on issues of shared responsibility for HIV prevention versus retribution for non-disclosure, particularly when the ‘victim’ is a woman.² The most recently reported prosecution was of a woman, who received a suspended five-year sentence for not disclosing her HIV status to her ex-husband, who subsequently tested HIV-positive.³

Prosecutions for HIV exposure and transmission in Germany began in the state of Bavaria, in the former West Germany, under existing bodily injury and aggravated assault laws (German Penal Code Articles 223 and 224), following a Federal Supreme Court decision in 1988 that unprotected sex without disclosure was attempted bodily injury. Since then there have been at least 20 prosecutions and 15 convictions throughout Germany.

The country’s highest profile case, involving allegations against a female pop singer, Nadja Benaissa, 27, is currently before the courts in the state of Hessen. ( For the latest information, see http://criminalhivtransmission.blogspot.com.) She was arrested and kept in preventative custody for ten days in April 2009, following complaints from three men that she had unprotected sex with them without disclosing her HIV status. One of the men has tested HIV-positive. Her very public arrest received international press coverage⁴ and condemnation from the German AIDS Federation.⁵ Until the Benaissa case, only men had been prosecuted.

However, in 2010 two futher women were prosecuted: one was found guilty of HIV exposure in Hessen and an HIV-transmission case is currently before the courts in Hamburg.⁶

The Netherlands began prosecutions in 1989 under existing homicide and assault laws. Following two convictions, there was a gap of eleven years before a further thirteen prosecutions with twelve convictions took place in the space of five years. In 2005, a Supreme Court ruling  – which closely examined scientific evidence of sexual transmission risk and found that the per-act risk of unprotected sex does not create a 'considerable chance' of transmission – substantially narrowed the scope of the law. As a result, only intentional HIV exposure or transmission is a crime.⁷

In its 2005 ruling, the Supreme Court also suggested that if the state wanted to continue to prosecute reckless HIV exposure and transmission they could create a new law. However, a report⁸ on the role and impact of the criminal law in addressing the HIV epidemic, produced by a collaboration of legislators, lawyers and civil society, played a major role in persuading the Government that such a law would be counterproductive to public health, and led to a policy focusing on prevention rather than prosecutions.⁷

Since 2005 there has been one prosecution, for intentional transmission via rape and forcible injection.⁹[ref]

Switzerland uses two different non-HIV-specific laws (often used together) to prosecute either HIV exposure or transmission. Article 231 of the Swiss Criminal Code allows for prosecution for HIV exposure or transmission – without the need for a complainant – of anyone who attempts to, or in fact “deliberately spreads a dangerous transmissible human disease”. Disclosure of HIV-positive status and/or consent to unprotected sex does not negate the offence, in effect criminalising all unprotected sex by people with HIV. In addition, Article 122 can be used to prosecute HIV transmission following unprotected sex without disclosure (as grievous bodily harm). Here, disclosure and consent is a defence, and a complainant is required.

There have been 39 prosecutions and 26 convictions since 1989. Prison sentences for HIV exposure have ranged between twelve-month suspended sentences to two years’ imprisonment. Prison sentences for HIV transmission have been for up to four years, plus a fine of up to CHF 80,000.

A 2009 study from the Swiss National Science Foundation and the Swiss AIDS Federation, examining every criminal prosecution since 1989,¹⁰ found eight convictions under Article 231 for HIV exposure following disclosure and full consent of the HIV-negative partner. It concluded that this law is discriminatory since it unfairly places sole liability on the HIV-positive partner in direct contradiction with public health policy, and recommended that either both parties should be prosecuted for having unprotected sex, or that there should be no prosecutions at all.

Swiss case law changed dramatically in 2008 and 2009 following two high court decisions. In July 2008, Switzerland’s highest court - the Federal Supreme Court in Lausanne - ruled that a man who was unaware of his infection when he had unprotected sex that resulted in HIV transmission was still criminally liable under both laws. The ruling suggests that someone who does not disclose a history of unprotected sex to their prospective sexual partner prior to unprotected sex could also be criminally liable should HIV transmission occur.^11,12

In February 2009, the Geneva Court of Justice quashed an HIV exposure conviction after hearing expert testimony from one of the authors of the Swiss Federal AIDS Commission’s statement regarding the lack of infectiousness of individuals on effective treatment¹³ and accepting that the risk of HIV exposure during unprotected sex from a person undergoing successful antiretroviral therapy is so low that it is only hypothetical¹⁴ (see Chapter 5: Risk, Important factors affecting risk..., Viral load). However, although the Federal Supreme Court upheld the Geneva Court ruling in July 2009, it did not explicitly rule on the link between effective treatment and risk of HIV exposure. Although HIV-exposure charges for people on effective treatment may still be laid in Switzerland’s 25 other cantons, there have been no further reports of prosecutions for HIV exposure – or transmission – since the ruling.