The rise of prosecutions in high-income countries

Edwin J. Bernard
Published: 18 July 2010

Twitter

  • DeBalie is filling fast so register now for Beyond Blame 2018: Challenging HIV Criminalisation, Amsterdam, Monday 2… https://t.co/FTA2WzVjt0 24 May 2018
  • RT @KELINKenya: .@AIDS_Free_World’s Legal Consultation Centers provide delegates and the public with free with attorneys on #HIV & law. Are… 23 May 2018
  • We're almost half-full already, so if you want to share your experiences, or learn more about, ending HIV criminali… https://t.co/skvEu5Z3yY 23 May 2018
  • RT @HIVJusticeNet: Register now for #BeyondBlame2018: Challenging #HIVCriminalisation De Balie, Amsterdam, 23 July 2018 #HIVJusticeWorldwid17 May 2018
  • RT @Beyond_Positive: NEW BLOG: 'Changing my mind on HIV by criminalisation' by @PatchworkSteve “If you had a dog, and that dog had rabies… 10 May 2018
  • Register now for #BeyondBlame2018: Challenging #HIVCriminalisation De Balie, Amsterdam, 23 July 2018… https://t.co/9xAvewQRBV 09 May 2018
  • Register now for #BeyondBlame2018: Challenging #HIVCriminalisation, De Balie, Amsterdam, 23 July 2018… https://t.co/90XJUNnqFj 09 May 2018
  • Mexico: Supreme Court finds Veracruz law criminalising ‘wilful transmission’ of HIV and STIs to be unconstitutional… https://t.co/GhT3Fbun0y 01 May 2018
  • RT @Bojorquez: The Mexican Supreme Cort rules unconstitutional to criminalize people living with HIV/AIDS and other STI's in the state of V… 01 May 2018
  • RT @EbaPatrick: Les ONG francophones se réunissent pour étudier les stratégies contre la pénalisation du VIH #AFRAVIH2018 @MalecheAllan @HI27 Apr 2018
  • RT @MalecheAllan: In 2014 we worked with @commonwealthorg to analyze our HIV laws in Kenya & identified the punitive ones https://t.co/70Gq… 27 Apr 2018
  • RT @UNDP: 6 years ago, @HIVLawCom showed the 🌎 how bad laws & policies are holding back progress on HIV. It’s time to revisit the discussio… 27 Apr 2018
  • RT @Synergiaihr: Edwin J. Bernard, @HIVJusticeNet : criminalization of HIV is ineffective & targets vulnerable communities. “Kerry is HIV p… 27 Apr 2018
  • RT @AAI_AIDSwatch: @HIVJusticeNet Edwin Bernard speaks to the need to educate lawmakers who think they are doing good by introducing #hiv t… 27 Apr 2018
  • RT @napwha: We've two ideas for the cover of the upcoming issue of Positive Living. Which one we run is up to you: white or black..? https:… 11 Apr 2018
  • RT @kenpinkela: The Eloquent and Inspiring Justice Edwin Cameron - #Stigma and the Role of Courts: The Disquieting Case of #AIDS https://t.… 10 Apr 2018
  • RT @iasociety: 68 countries and 98 jurisdictions have specific #HIV criminalization laws in place. IAS Member and @HIVJusticeNet Global Coo… 10 Apr 2018
  • Thanks to Cecile Kazatchkine from @AIDSLAW for leading on HIV JUSTICE WORLDWIDE's support of an emerging Francophon… https://t.co/Q18WDqaWTC 10 Apr 2018
  • Thanks @nicheholas. As you know, the indefatiguable @o_g_ford pulled all this together for @uspwn on behalf of HIV… https://t.co/fX6ZdLBW5w 10 Apr 2018
  • RT @AIDSLAW: Webinar: Making Media Work for HIV Justice - April 5 11 a.m. ET. Explore material from the HIV Justice toolkit, and hear from… 04 Apr 2018

Other wealthy countries with low overall HIV prevalence soon found themselves wrestling with similar policy options, with similarly wide variation in legal and policy responses.

The world’s first known conviction of a person for unprotected consensual sex without disclosure of his HIV-positive status occurred in the former West Germany (now the Federal Republic of Germany) in 1987. The case involved a 46-year-old American civilian who worked as a cook at a United States army base in Nuremburg, Bavaria. The defendant had acknowledged having sexual intercourse with at least three other men after learning that he was HIV-positive, but denied he intended to harm anyone. He received a two-year prison sentence “for attempting to inflict ‘grievous bodily harm’ by practicing unprotected sex.”1  Of note, the man’s arrest had immediately followed “the widely publicized announcement of stiff measures against the spread of the AIDS virus in the southern state of Bavaria.”1

Beginning in 1989, Canada used existing criminal laws to prosecute HIV-positive people for having otherwise consensual sex without disclosing their HIV status, with charges including criminal negligence causing bodily harm; common nuisance; assault; administering a noxious thing; and attempted murder.2  The number of prosecutions increased substantially following a 1998 Supreme Court ruling that if an HIV-positive person does not disclose his or her status before engaging in otherwise consensual sexual conduct that poses a ‘significant risk’ of HIV transmission, then the partner’s consent is invalid, thereby rendering the sex an assault in law.3

Early prosecutions in Australia reveal a complex pattern. Nine of the twelve known cases between 1991 and 2001 occurred in Victoria (one of eight jurisdictions), with one charge laid in each of three other states/territories. The first two known charges (‘reckless endangerment’) were laid against two sex workers (a man and a woman) but charges were dropped immediately before the committal hearing.

Possibly the world’s first-ever murder conviction for sexual HIV transmission took place in Italy in 2000, when an Italian man was found guilty of ‘culpable homicide’ for infecting his wife who subsequently died. There are no details regarding how the court proved his state of mind or whether he pleaded guilty or was found guilty following a trial. He was sentenced to 14 years in prison.

The next person was charged in 1993 for having unprotected sex without disclosing his HIV status. The defendant died between the committal hearing and the trial.4 Subsequent prosecutions, all relating to unprotected sex without disclosure, also “went unrealised or were overturned (but resulted in considerable media and public resentment), basically as a result of the low risk of transmission associated with individual sexual encounters.”5 The first conviction was obtained in 1998.6 The defendant was a 52-year-old bisexual man who was found guilty of having oral and anal sex with three men, two of whom tested HIV-positive. He committed suicide in prison.

By 2005, at least 36 European countries had either HIV-specific criminal laws or had used existing criminal laws to prosecute HIV exposure or transmission, and 21 had successfully prosecuted at least one person. However, just three European countries – Austria, Sweden and Switzerland – accounted for more than 60% of the total convictions, each having prosecuted more than 30 people living with HIV with cases starting in 1990, 1992 and 1998, respectively. Prosecutions in Europe were primarily for non-coercive sexual exposure or transmission.7

References

  1. New York Times Bavarian court convicts American in AIDS case. 17 November, 1987
  2. Elliot R Criminal law & HIV/AIDS: final report. Montreal: Canadian HIV/AIDS Legal Network/Canadian AIDS Society, 1996
  3. Elliott R After Cuerrier: Canadian criminal law and the non-disclosure of HIV-positive status. Montreal: Canadian HIV/AIDS Legal Network, 1999
  4. Cameron S Research undertaken for the Australian National Association of People Living with HIV/AIDS, unpublished, 2009
  5. Woodroffe M Criminal transmission of HIV in Australia. in Cameron S and Rule J (eds), The Criminalisation of HIV Transmission in Australia: legality, morality and reality NAPWA, 2009
  6. Houlihan A, (Ill-Legal) Lust is a Battle Field: HIV risk, socio-sexuality and criminality. Law and Society Association Australia and New Zealand (LSAANZ) Conference, Sydney, 2008
  7. GNP+, THT Criminalisation of HIV transmission in Europe. Available online at: www.gnpplus.net/criminalisation/index.shtml, 2005
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.
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
close

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.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.