A groundbreaking new report prepared by The Global Network of People Living with HIV/AIDS Europe (GNP+ Europe) and the Terrence Higgins Trust (THT), has discovered that out of the 45 European countries surveyed, in at least 36, the actual or potential transmission of HIV can constitute a criminal offence.
At least one person has been prosecuted in 21 of these countries, and there have been at least 130 convictions Europe-wide. Notably, Austria, Sweden and Switzerland are responsible for more than 60% of the total convictions and have each prosecuted more than 30 people. At the other end of the scale, neither HIV exposure nor transmission appear to be criminalised in Albania, Bulgaria, Luxembourg, Slovenia, and the Republic of Macedonia.
The GNP+ Europe/THT report, Criminalisation of HIV transmission in Europe, suggests that what has been occurring in the United Kingdom over the past few years is not only not unique, but is the tip of the iceberg of a more sinister Europe-wide development. Substantial evidence suggest that prosecutions for HIV transmission have been on the increase throughout Europe. GNP+ Europe and THT sought funding and support from each other, as well as funding from UNAIDS, to develop an overview of the situation in the 45 signatory countries to the European Convention on Human Rights.
Their intention was to ascertain the following:
- the types of laws used for the prosecution of HIV transmission
- the number and rate of prosecutions and convictions
- the ethnicity, gender, socio-economic and immigration status of those prosecuted
- and which local organisations were best informed for legal advice.
They created a three-page questionnaire and sent it, primarily via email, to over 600 government and voluntary legal and HIV/AIDS organisations, as well as individuals known to be involved in this area. Their primary source of European contacts was NAM's electronic database Nambase. Although only 87 completed questionnaires were received, providing sometimes confused and conflicting information, the preliminary results make sobering reading.
Of the 45 countries polled, information was ascertained for 41. Information was corroborated by a govenment source in 13 of the 41 countries. Organisations in Andorra, Greece, San Marino and Spain could not provide enough information to be included in the survey. In fact, lack of access to information was cited by 50 of the 600 respondents.
Types of laws used to prosecute HIV transmission
HIV transmission did not appear to be criminalised in Albania, Bulgaria, Luxembourg, Slovenia and the Republic of Macedonia.
In the remaining 36 countries where the actual or potential transmission of HIV constitutes a criminal offence, laws range from HIV-specific legislation (in 14 countries) to the use of more general criminal law. Where most (22) countries' laws require intent, some do not. Only the Netherlands and the UK criminalise "reckless" behaviour, but nine European countries criminalise "negligent" behaviour.
In at least 15 countries (including Denmark, France, Germany, the Netherlands, Norway, Poland, Russia, Sweden and the Ukraine) exposing another person to the risk of HIV transmission is an offence. Most of the countries that have punished HIV exposure were reported to have HIV-specific laws, with the exception of Georgia, which enacted laws based the recommendations of 2002 UNAIDS policy paper Criminal Law, Public Health and HIV Transmission.
Although imprisonment was the most common punishment, some countries had alternate or additional penalties. In Armenia, a person can be punished by enforced correctional labour for exposing someone to HIV infection. Germany, Iceland, Ireland, Portugal and Switzerland can impose fines instead of, or in addition to, imprisonment. In Sweden, damages of up to EURO 80,000 have been assessed on top of prison sentences. Sweden has also used isolation as punishment: usually between six and nine months, but in one case for seven-and-a-half years. Austria, Finland, Sweden, Switzerland and the UK have also used deportation as a method of punishment: in some of the these cases, the deportations were to countries that did not provide antiretroviral therapies.
The number and rate of prosections and convictions
At least 130 people have been convicted for transmitting or exposing another person to HIV infection. A large majority of the convictions (around 90%) were applied to alleged transmission during consensual sex. Austria, Sweden and Switzerland have each prosecuted more than 30 individuals for HIV transmission; Austria and Sweden have convicted at least 30 HIV-positive people, Switzerland at least 20.
Sweden has an HIV-positive population of approximately 3,600, which means that there has been one prosection for every 120 HIV-positive people in the country. The first prosecution took place in 1992, but the Swedish Association for HIV-Positive People (RFHP) reports a lack of detailed information and suggests that the media have alerted them to most of the cases. There have been four prosections leading to four conviction in one year between September 2003-4. The RFHP had details of eighteen cases: 17 men and one woman; twelve for heterosexual transmission, six for same-sex transmission. Most of those convicted were from Africa, although citizens of Sweden, Portugal, Canada and Denmark were also convicted. The average number of years of imprisonment reported by the RFHP was five to seven years, with additional damages, and sometimes deportation. In addition, the RFHP reports anecdotal evidence suggesting that HIV-positive people are being blackmailed in exchange for not being prosecuted.
AIDS-Hilfe Salzburg and Professor Hinterhoffer from the Univerity of Salzburg provide conflicting information regarding the situation in Austria: the former are aware of 20 cases, the latter 40. It is unclear whether more men than women have been prosecuted, and whether more cases involved same-sex or or heterosexual transmission. However, it appears that the first prosecution took place in 1990. No solid data were provided regarding the nationalities or socio-economic status of those prosecuted, but Prof Hinterhoffer suggested most were Austrians.
Switzerland has no centralised system of data collection, with each of 26 Cantons managing its own database. Consequently, AIDS-Hilfe Schweiz had little detailed information regarding the estimated 30 prosecutions and 20 convictions. The first prosecution took place in 1988, and there is some evidence to suggest that the number of prosecutions has risen in recent years: between September 2003-2004 five prosecutions were known to have taken place, with four convictions. Although the majority of convictions appear to have been Swiss heterosexual men, some women, some gay men, and some Africans have also been convicted, the latter deported after imprisonment. There is some evidence that more same-sex prosecutions are now taking place, and it was suggested that this was due in part to anti-gay prejudice from legislators in certain Cantons, reflected in the language used by judges regarding "promiscuous lifestyles."
Other European countries with more than five prosecutions or convictions for HIV transmission or exposure include Denmark, Finland, the Netherlands and Norway.
In the past year, the following countries have prosecuted or convicted two or more people for HIV transmission or exposure (convictions in brackets): Czech Republic (1), Denmark (1), Finland (2), the Netherlands (2), Sweden (4), Switzerland (4), and the UK (4).
Who was convicted?
Details were provided for 84 of the more than 130 convictions for HIV transmission or exposure. More than 90% (77) were men. Just over 50% were alleged to have occurred through heterosexual sex, although 45% may have occurred during sex between men. Just one confirmed case occurred through injection drug use, and none through mother-to-child transmission.
Unfortunately, the respondents were less able to provide precise details about the nationality, ethnicity and socio-economic status of those convicted. Nevertheless, from those details provided it does appear that in many countries (Sweden, Finland, and the UK included) those in vulnerable social and economic positions appear to be disproportionately represented. Although in the Netherlands, ten of the eleven convicted were Dutch, most were gay men on disability benefits. Of the five individuals convicted in Norway, three were Norwegian, one was South African, and one Sudanese. In Italy, however, all three convicted individuals were Italians – a prostitute, a petty criminal and a DJ.
HIV/AIDS organisations, legal advice and human rights issues
The research from GNP+ Europe/THT appears to have unearthed a can of worms, and the authors comment that local response had been patchy. "There was, however, often a sense that organisations had been overtaken by events," the authors of the report write, adding that "it was noticeable that in a number of countries there was no easily located source of community or NGO expertise on HIV and law."
They add that the survey confirms "that there is need for further research into the potential human rights violations present in some aspect of criminal enforcement and judicial systems in relation to HIV. For example, lack of provision or discontinuation of effective care and treatment through imprisonment or deportation could amount to violation of the rights to life, to health and freedom from cruel, inhuman or degrading treatment."
They suggest that a case in Finland, where a man was deported and separated from his Finnish wife and children, may violate Article 8 of the European Human Rights Charter. They also note that the Swedish case of isolation for more than seven years may also violate Article 5.
The way forward
It is clear that although this report is not by any means complete or totally accurate, enough reliable information has been supplied to provide a sobering overview of the situation in Europe.
The authors acknowlege that this report is only the start of a process of understanding the issues and trends involved. They are interested in hearing from organisations and individuals throughout Europe to maintain and develop an informational database. They also hope that this report will encourage better data surveillance and collection on prosections and convictions.
In addition, the authors call for more research into the impact that the criminal prosecutions for the transmission of HIV may have on stigma and discrimination, including examining the role of the media. They suggest that more research should also be done on how legal systems regulate personal sexual behaviour and the human rights implications of such laws and their enforcement.
"It is vital," they conclude, "that people with HIV, those most at risk of transmission, those who provide treatment and care, and those involved in sexual health promotion are all enabled to help shape future jurisprudence which respects future human rights and furthers public health."
The UK situation
In the UK, the criminalisation of HIV transmission has become one of the most urgent topics on the UK AIDS policy agenda ever since the 2001 conviction and sentencing of a man in Scotland for “culpable and reckless conduct". The matter has become even more urgent in the past year, now that four men in England have been convicted and imprisoned under the Offences Against the Person Act 1861, Section 20, for “recklessly inflicting grievous bodily harm” by transmitting HIV to their sexual partners.
Earlier this year, the Court of Appeal’s decisions in the cases of Mohammed Dica and Feston Konzani have now defined what constitutes “reckless” transmission of HIV (and any other serious infection) in England, Wales and Northern Ireland. The Court has also determined the circumstances in which consent may provide a defence to a person charged with reckless transmission. What remains unclear, however, is who might be prosecuted for this offence; how often such prosecutions may happen; and how HIV-positive individuals might best avoid the risk of prosecution.
The July/August 2005 issue of NAM's newsletter AIDS Treatment Update, available via subscription (free for HIV-positive individuals by emailing firstname.lastname@example.org), examines the latest available information on the criminalisation of HIV transmission in the UK, including a summary of the latest advice for HIV-positive individuals from THT and the National AIDS Trust.