Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

Edwin J Bernard - September 25, 2014

Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had unprotected sex with several women none of whom were infected.  Instead, it cited its 2004 ruling stating that only sex with a condom can prevent a prosecution for ‘HIV exposure’ (as reckless endangerment).

The Swedish Prosecutor’s office notes that

“The Supreme Court’s decision means that the Court of Appeal’s acquittal
cannot be considered indicative. Instead, the Supreme Court judgment of
2004 is still indicative. The legal situation has not changed.”

Advocates are extremely unhappy. Although lower courts can still take notice of ‘Risk of HIV transmission from patients on antiretroviral therapy: A position statement from the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy‘ (aka the ‘Swedish statement’) in future trials for people with HIV on successful treatment, this was a lost opportunity to modernise the application of the law from the highest court in the land.

An editorial by Oisín Cantwell in Monday’s popular newspaer, Aftonbladet, spelled out exactly what this means.

The fear of AIDS will survive 
The Supreme Court had a chance to make up with the judiciary outdated
views on HIV. But a new decision means, unfortunately, that people
will continue to be convicted of crimes they did not commit.

The Court of Appeal for Skåne and Blekinge last year acquitted a man
living with HIV and who had had unprotected sex with four different
women [all of whom] did not become infected.
The district court had sentenced him to one year in prison, but the
Court of Appeal brought in the opinion of the [Swedish] Centre for
Disease Control and allowed a professor to testify.
According to both the CDC's expert statement and the professor,
the [HIV transmission] risk during vaginal sex is very low.
The Court of Appeal found that since the man was well-managed on
medication  "the probability that the intercourse to which the charge
relates would result in the transmission of HIV was so small that
no real danger can not be considered to have existed."
Thus, there was not any crime.

Courageous verdict
The verdict was courageous and progressive: the lawyers listened to
some of the world's most skilled and knowledgeable researchers
in the field and took a decision that could lead to scientific
criteria forming the basis of when prosecutions should be instituted
in cases related to HIV.
The Prosecutor appealed to the Supreme Court to see if it would
stand up and be the guide. Now the Supreme Court's curt decision
has been reached, the case is not addressed. This means on one
hand that the Court of Appeal's ruling is upheld.
The man is innocent.
But the Supreme Court writes, in addition, that a ruling from
2004 still applies in practice.

Very unfortunate
That case concerned a man who had had a significant number of sex
with ten men [all of ] whom were not infected. He was sentenced
to one year in prison for reckless endangerment.
That this judgment will in the future be the guiding principle
is very unfortunate. It was reasonable when it was delivered,
but in the ten years that have passed since then, research has
made great progress.
Today's medicine allows those living with HIV on successful
treatment are simply not infectious. In addition there is now
much better knowledge of the risks than then.
In other words, its no sensation that Jan Albert, Professor of
Infectious Disease at the Karolinska Institute, is surprised
that the Supreme Court still drags out the old judgment.

The consequence: stigma remains 
What, then, will be the consequence of the decision?
The 1980s horror of AIDS will live on in the courtrooms
and help maintain the future stigmatisation of those with HIV.
It is perfectly understandable that people become terrified
when they find out that they have had unprotected sex with
someone with HIV.
But this fear that is based on ignorance.

No need to disclose
In its recommendations, the National Board writes that a doctor
can now make their own judgment about whether their patient need
to inform their [sexual] partner that they are living with the virus.
Of course it will still be a crime to not adhere to treatment and,
therefore, expose others to risk. But those who take their HIV
seriously, which a substantial majority do, for obvious reasons,
do not commit a crime when they have sex.
That people may be sent to jail for something they have not
done wrong is deeply offensive.
Something tells me that the judgement also means that
the huge amount of legitimate international criticism that
has been leveled against Sweden, as one of the countries with
the greatest zeal for HIV-related crimes, will not end.

Stockholm Court of Appeal finds successful treatment grounds for acquittal

However in June, the Stockholm Court of Appeal found that a woman living with HIV could not be held criminally liable for reckless endangerment when she was on successful antiretroviral treament.  Instead they sentenced her probation and a 5000 kronor (€550) fine for reckless endangerment for having condomless sex with a man (who was aware of her status).

The ruling was reported in Allt om juridik on June 11th.

An HIV-positive woman indicted for repeated unprotected sex
with a man was acquitted entirely in the District Court.
A divided Court of Appeals has now made a somewhat different
assessment, sentencing the woman to probation and a fine.

A man reported a woman to the police and claimed that she had
unprotected sex with him without telling him that she was infected
with HIV. The woman was charged with attempted aggravated assault
as well as reckless endangerment.

At the trial the man changed his mind and said that he knew about
the woman's HIV infection before the first sexual intercourse,
but made a police report because of jealousy.

The District Court noted that during the unprotected intercourse
there had been some, but not significant, risk of HIV transmission.
The Court also found that the defendant "harbored warm feelings"
for the man, supported by the fact that she completed intercourse,
trusting that any transmission of infection would not happen.
Therefore, it was not established that the woman had the
intent to transmit HIV infection, and the indictment for
attempted aggravated assault was dismissed.

Regarding the prosecution for reckless endangerment the District
Court held that the consent had an exonerating effect because the
risk of infection had not been as high. The Court stated that
the question of exonerating consent existed to be judged
by the severity of the risk and the risk that the danger would
be realised. The Court found that HIV infection is a very
serious disease. Unlike the District Court, the Court considers
that the risk of infection in this case was so high during
the period when the woman was untreated for HIV infection,
1 in 1000 through unprotected sexual intercourse, that the consent
did not have an exonerating effect. After the time woman began to
take antiretrovirals, there was a decreased risk of infection,
however, so that the consent could be deemed to be exonerating.

The woman sentenced thus for reckless endangerment only for the
period when she was not on antiretroviral drugs. The penalty
was determined to be probation and a fine.