Switzerland: Government ignores expert recommendation to decriminalise non-intentional HIV exposure and transmission

Edwin J Bernard - December 8, 2010

The Swiss Government has ignored expert recommendations to decriminalise everything but intentional HIV exposure or transmission following a consultation on changing Article 231 of the Swiss Penal Code, according to a strongly worded press release from Groupe sida Genève issued yesterday.

At the International AIDS Conference in Vienna earlier this year, the Swiss Federal Commission for AIDS-related issues – the Swiss statement people – described how they have been working behind the scenes to modify Article 231 of the Swiss Penal Code which allows for the prosecution by the police of anyone who allegedly spreads “intentionally or by neglect a dangerous transmissible human disease” without the need of a complainant. (Download the pdf here)

The law has only ever been used to prosecute people with HIV. Disclosure of HIV-positive status and/or consent to unprotected sex does not preclude this being an offence, in effect criminalising all unprotected sex by people with HIV. Since 1989, there have been 39 prosecutions and 26 convictions under this law.

The Swiss Federal Commission for AIDS-related issues issued a statement in September 2010 (available in English here) that stated:

[Current Swiss] legal practice is in blatant contradiction to the tried and tested Swiss Aids policy held by broad social consensus. Accordingly, the FCAI calls for the following requirements from the lawmakers and the practitioners of criminal law (public prosecution and judicial authorities):

1. Public prosecution and judicial authorities have to take into account the scientific findings on the infectiousness of HIV-positive persons under successful therapy (FCAI statement 2008). Persons, who are not considered to be infectious according to the FCAI criteria, shall not be punished. Any processes are to be stopped and previous sentences, when needed, are to be revised.

2. Also for HIV-positive persons, whose virus count is not yet under the detection limit, the risk of transmission is very low. The courts are therefore advised not to undertake hastily a possible deliberate action. The highest court of law of the Netherlands, in a leading decision in 2005, made an exemplary judgement in this regard.

3. The legislative body has to amend Art. 231 SPC such that amicable unprotected sexual contact may no longer be subsumed under this code. An opportunity for this is offered by the current (2010) revision of the epidemic law.

 The draft of the proposed new Law on Epidemics removed much of the draconian provisions of  Article 231, leaving only intentional exposure or transmission a criminal offence.

However, according to Groupe sida Genève

The present version put before the assembly maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

The consequence is that Switzerland will move from having one of the most draconian and discriminatory laws on HIV exposure in the world to one that is similar to Canada’s – making disclosure of HIV-positive status a defence to alleged exposure or transmission, in effect mandating disclosure before any kind of unprotected sex by someone aware they are living with HIV.  This is a lost opportunity for Switzerland to lead the world in decriminalisation of non-disclosure, alleged exposure and non-intentional transmission (following the lead of The Netherlands in 2005).

Although a previous Geneva Court of Justice aquittal (and the upholding of the subsequent Federal Court appeal) now suggests that someone with an undetectable viral load would not be found guilty of HIV exposure (with or without disclosure), this is not the case in Switzerland’s 25 other cantons.

As Groupe sida Genève point out this latest development “not only maintains the criminalisation of HIV-positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.”

I’ll be posting more on this once I’ve digested all of the documents linked to in the press release below, and spoken with some insiders in Switzerland.  But I join Groupe sida Genève in condemning “the backwards attitude” of the Swiss authorities. 

Full press release below:

Groupe sida Genève denounces the proposed changes to art. 231 of the Swiss Penal Code. Exposure and transmission of HIV will remain a criminal offense despite best evidence that criminalisation is incompatible with the aims of successful general prevention programmes.

The executive branch of the Swiss government, the Federal Council, has introduced a bill in the federal assembly to revise the Federal Law on fighting infectious human diseases. (See the Federal Department of the Interior’s press release of Friday December the 3rd)

Included in the new provisions was one, article 86 (80 in the consultation version), to amend article 231 of the Swiss Penal Code incriminating the propagation of an infectious human disease.

The bill as it came out of the consultation process proposed to abrogate the paragraphs dealing with intentional and negligent exposure and transmission of HIV. Only the qualified form of malicious intent would have been indictable, the others would not have been considered offenses.

However, the bill, in the present version put before the assembly, maintains simple intention and negligence as well as malicious intent despite the broad acceptance that the consultation’s version found amongst all stakeholders.

Furthermore, the bill introduces a new paragraph creating an absolute defence in favour of the accused only in the event he made a full disclosure of the risk the HIV negative partner was exposing him or herself to.

Groupe sida Genève is convinced this amendment represents the complete opposite of the position taken by the Swiss Federal Commission for AIDS-related issues (FCAI) in its most recent Declaration on the criminality of HIV transmission. It not only maintains the criminalisation of HIV positive persons, but also spells out rules of disclosure that will only lead to more stigma and discrimination.

Groupe sida Genève is dismayed by this proposal and would like to encourage all to join in our condemnation of the backwards attitude of the Swiss Authorities. Please give this information the widest possible distribution in your networks.

Background

All Swiss federal legislation goes through a consultation procedure where all concerned stakeholders can give their views on proposed legislation. Bills traditionally include the results of the consultation procedure as this ensures the bill achieves the greatest possible consensus.

Article 231, incriminating propagation of a human disease, is one of two provisions in the Penal Code under which persons accused of transmission and exposure to HIV are customarily indicted, the other being article 122 concerning grievous bodily harm.

Under article 231 the intentional transmission of a human disease is punished by a custodial sentence of not more than 5 years whilst the negligent transmission or exposure by a sentence of not more than 3 years. In both cases the minimum sentence is 30 day-fines (jour-amende).

Approximately 39 HIV positive persons have been sentenced under one or the other or a combination of both provisions. In 2009, the criminal chamber of the Geneva Cantonal Court dismissed a case of exposure based on the 2008 declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on infectiousness of HIV under effective ART and the expert testimony of Professor Bernard Hirschel. To date it remains unclear whether the decision will be make jurisprudence.

References and further reading

Federal department of the Interior press release on the Revision of the Federal law on the fight against Epidemics. 03.12.2010 (link)

Declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the criminality of HIV transmission. 18.11.2010 (PDF)

Summary of the declaration by the Swiss Federal Commission for AIDS-related issues (FCAI) on the infectiousness of HIV on effective ART treatment (Swiss statement). 30.01.2008 (PDF in French) (Canadian HIV/AIDS Legal Network’s English translation  PDF)  The full text of the declaration was published in: Schweizerische Ärztezeitung / Bulletin des médecins suisses / Bollettino dei medici svizzeri / 2008; 89:5)

Bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.201

Message on the bill tabled in the federal assembly as PDF: (in French)(in German)(in Italian), 03.12.2010

Consultation draft of the bill as PDF: (in French)(in German)(in Italian), 08.01.2008

Report on the results of the consultation as PDF: (in French)(in German)(in Italian), 20.10.2008

“S” v. Procureur Général, Judgement, February 23rd 2009, Chambre pénale, Geneva. (PDF in French with an English translation by the Canadian HIV/AIDS Legal Network from the resources for lawyers and advocates webpage.)