|16 November 2015|
A, with the knowledge of being HIV-positive, had had unprotected anal sexual intercourse with B on multiple occasions without disclosing his illness to B. B had not contracted HIV. The question before the Court is whether A had placed B in serious danger of losing his life or health. (Vote)
Proceedings in lower courts
Judgment of Helsinki District Court on 26 May 2011
Helsinki District Court found A guilty of imperilment.
The Court considered it to have been demonstrated that A had, on multiple occasions between 3 February and 11 March 2009, engaged in unprotected sexual intercourse with B. A had known that he was HIV-positive and that the virus can be transmitted through unprotected sexual intercourse. A had not disclosed his illness to B. By denying B the chance of protecting himself against the virus, A had shown flagrant disregard for B’s life and health. By his actions and gross negligence, A had placed B in serious danger of losing his life or health.
C, a specialist in internal medicine and infectious diseases who was heard as a medical expert witness, told the Court about a Swiss statement, according to which HIV-positive individuals are not infectious under certain circumstances. C characterised A’s condition as such where the risk of transmission was theoretical at most. On the other hand, the Court found that the seriousness and incurable nature of the infection, to which C testified, were notorious facts that had also been known to A.
C went on to explain that despite the Swiss statement and a couple of other studies published in other countries, the advice given to HIV-positive individuals in Finland is still to always disclose their condition to their sexual partners and to use a condom. The Court felt that this proved that the possibility of infection could not be ruled out to the extent that would excuse an infected individual for denying their sexual partner the chance to refuse to engage in sexual intercourse and for not using protection to prevent the transmission of the disease. The Court found that B had been placed in genuine danger of contracting a life-threatening disease.
A could provide no explanation as to why he had not disclosed his illness to B. A also claimed to have used a condom. The Court found that this was evidence of A having been aware of his responsibility as an HIV-positive individual. Although A told the Court that the Swiss statement mentioned by C had given him the impression that he could not transmit the virus to others, the Court felt that, objectively speaking, A should not have made that assumption. The Court found that B had been placed in genuine danger of contracting a life-threatening disease.
Despite the stage of his disease, A had, by concealing his HIV infection and by engaging in unprotected sexual intercourse, placed B in serious danger of his life or health through his gross negligence.
The ruling was delivered by District Judge Markku Saalasti and lay judges.
Judgment of Helsinki Court of Appeal on 25 October 2012
A appealed to Helsinki Court of Appeal and demanded that the charge against him be dismissed.
The Court of Appeal found no reason to interpret the evidence differently from the District Court.
In its examination of A’s conduct from the perspective of whether B had been placed in “serious danger”, which is one of the constituent elements of imperilment, the Court found that, based on the evidence, HIV is a chronic, incurable infection, which requires lifelong medication and typically shortens patients’ life expectancy by at least some years. The consequence of B’s having contracted the disease would have therefore been extremely serious.
In order to assess the probability of the consequence, the Court examined the effect of A’s antiviral drug therapy on the infectiousness of the disease. The Court found that, based on the evidence, there was no reason to doubt the appropriateness of A’s drug therapy or that the viral load in his blood had been low at the time of the acts.
The Court found that the risk of transmission had, in practice, been relatively low. On the other hand, the risk could not be ruled out completely. B’s contracting HIV had been a possibility.
Overall, considering the probability of the consequence on the one hand and its seriousness on the other, the Court found that A had, by his conduct, placed B in serious danger of his health.
In its assessment of the degree of A’s negligence, the Court found that A had, by his actions, shown flagrant disregard for B’s health. A had therefore failed in his duty to take such care as was expected of him in the circumstances, despite having had an opportunity to do so. Considering the seriousness of the potential consequences of this failure, the importance of the interests at risk, and other factors referred to in Chapter 3, Section 7 of the Criminal Code, the Court deemed A’s negligence to have been “gross”.
The Court of Appeal upheld the District Court’s judgment.
The ruling was delivered by members of the Court of Appeal Risto Hänninen, Paula Salonen and Marja Kartano.
Appeal to the Supreme Court
The Supreme Court granted A leave to appeal.
In his appeal, A demanded that the charge against him be dismissed.
The prosecutor and B demanded that the appeal be dismissed.
The Supreme Court requested expert opinions from the National Institute for Health and Welfare and the Hospital District of Helsinki and Uusimaa, and invited the parties to comment on the same. All parties responded.
The Supreme Court held an oral hearing in the case and took evidence from B and expert witnesses.
Ruling of the Supreme Court
Premises and questions to be answered
1. The District Court considered it to have been demonstrated that A had, on multiple occasions while he was staying with B between 3 February and 11 March 2009, engaged in unprotected sexual intercourse with him without a condom. A, who had known that he was HIV-positive, had not disclosed his illness to B and had thus denied B the chance of protecting himself against the virus. Although, according to C, a specialist in internal medicine and infectious diseases who was heard as an expert witness, the risk of transmission had, due to A’s antiviral drug therapy, been only theoretical, the possibility of infection could not be ruled out to the extent that would have excused A for denying B the chance to refuse to engage in sexual activity and for not taking other steps to prevent the transmission of the disease through sexual activity in these circumstances. The District Court found that, by his gross negligence, A had placed B in serious danger of losing his life or health, and sentenced him to imprisonment for imperilment. The sentence was suspended.
2. The Court of Appeal, like the District Court, considered it to have been demonstrated that A and B had engaged in unprotected anal sexual intercourse on multiple occasions. The Court of Appeal found no reason to doubt the appropriateness of A’s HIV drug therapy or that the viral load in his blood had been low at the time of the acts. The Court of Appeal considered it to have been demonstrated that the risk of transmission had, in practice, been relatively low. However, the Court of Appeal found that the possibility of B’s contracting HIV due to A’s actions could not have been ruled out completely. The Court of Appeal found that HIV is a chronic, incurable infection, which requires lifelong medication and typically shortens patients’ life expectancy by at least some years. The consequence of B’s having contracted the disease would have therefore been extremely serious. The Court of Appeal found, considering the probability of the consequence on the one hand and its seriousness on the other, that A had, by his conduct, placed B in serious danger of his health. The Court of Appeal deemed A’s negligence to have been “gross”. The Court of Appeal found that A was guilty of imperilment as ruled by the District Court.
3. Based on A’s appeal, the question before the Supreme Court was whether A had, in engaging in unprotected anal sexual intercourse with B, committed imperilment as per Chapter 21, Section 13 of the Criminal Code, and, more specifically, what weight should be given to A’s antiviral drug therapy when examining this question.
4. The Supreme Court last examined the question of an HIV-positive individual’s criminal liability in unprotected sexual intercourse in its precedent-setting ruling No KKO:1993:92. According to a medical study referred to in the judgment, the probability of the receiving partner in unprotected anal sexual intercourse contracting HIV had been at least 10% at the time of the events in 1986–1987. HIV treatments have advanced significantly since that time, and the signs and symptoms associated with the disease have changed. This is why the Supreme Court felt it pertinent to first examine what is known of HIV, the ways in which it can be transmitted, and the effect of drug therapy on the infectiousness of the disease in the light of current scientific information.
5. For this purpose, the Supreme Court requested expert opinions from the Hospital District of Helsinki and Uusimaa and the National Institute for Health and Welfare. The Supreme Court then invited the signatories of those expert opinions, Department Head C (Hospital District of Helsinki and Uusimaa) and Research Professor D (National Institute for Health and Welfare), to give evidence in an oral hearing. The expert opinions and the expert witnesses’ testimonies are discussed below. Studies referred to by C, the bibliographical details of which were included in the Hospital District of Helsinki and Uusimaa’s expert opinion, are also discussed below.
Facts about HIV
6. HIV (human immunodeficiency virus) is a virus that causes a progressive failure of the immune system. HIV infects and destroys T helper cells in blood (CD4 lymphocytes) and weakens the patient’s immunity. The viral load in the patient’s blood rises, allowing viruses to infect more and more cells.
7. Approximately half of all patients begin to show early symptoms of the infection, such as fever, fatigue and a sore throat, within a few weeks of contracting the virus. This initial stage is followed by an asymptomatic stage, which can last several years. Without drug therapy, HIV causes the body’s natural immunity to decrease gradually. Left untreated, HIV leads to AIDS, and ultimately to the death of the patient within approximately 10 years on average.
8. New drug treatments based on a combination of three drugs were introduced in the 1990s. Although HIV is not curable with current treatments, the proliferation of viruses can be prevented with drug therapy and their number in plasma kept below the limit of detection. Successful treatment increases the number of CD4 cells and decreases the number of opportunistic infections.
9. With the introduction of drug therapy, the viral load in a patient’s blood drops to one hundredth of the original level in a few weeks, after which a slower stage of progression ensues. It takes at least three, and sometimes as many as six, months for the viral load to drop below the limit of detection. The viral load can also increase at times. In practice, the viral load becomes undetectable once a patient has been on drug therapy for at least one year.
10. Strict compliance with the instructions for taking antiretroviral drugs is vital to the success of drug therapy. If the drugs are taken irregularly, the virus may develop a resistance to the medication and the treatment lose its effectiveness. If drug therapy is discontinued, the viral load in the patient’s blood returns to the pre-treatment level within approximately two weeks. Lowering the viral load back to a level below the limit of detection takes almost as long as when treatment was first begun.
11. The drug treatment of HIV requires specialist expertise and, in Finland, is overseen by a specialist medical care professional. The aim is to choose the best alternative for each patient from multiple drug combinations. During the initial stages of drug therapy, patients have more frequent doctor’s appointments than once the viral load has stabilised, first at one-month and then at three-month and six-month intervals, and later on a permanent basis at intervals of no more than six months.
12. If drug therapy is initiated in time and the patient takes their drugs as instructed, HIV usually does not have a significant impact on the patient’s life expectancy compared to the background population. If the virus is contracted at a young age, before the age of 25, the patient’s life expectancy may be reduced by some years. According to D, there is no definitive answer to this question. The biggest challenge in HIV diagnostics is to identify patients, and especially asymptomatic patients, in time.
Transmission of HIV through sexual intercourse
13. HIV can be transmitted through sexual intercourse, by the transfer of blood, and from a mother to a child during pregnancy, childbirth, or breastfeeding. The risk of transmission through sexual intercourse depends on many factors, such as the viral load in the HIV-positive individual’s blood, the type of sexual activity, whether a condom is used, the condition of the sex organs of the individuals engaged in sexual activity and the mucous membranes that are exposed to the virus, whether the HIV-positive individual is taking antiretroviral drugs, and the immunological characteristics of the individuals engaged in sexual activity.
14. According to C, the risk of transmission through unprotected vaginal intercourse is 1:200–1:2,000 for women and 1:700–1:3,000 for men, if the HIV-positive individual is not taking antiviral drugs. The risk of transmission may be 1:100, if the virus was contracted recently or if an individual has another sexually transmitted disease. The risk is higher with unprotected anal intercourse than with vaginal intercourse, approximately 14 transmissions per 1,000 instances of unprotected intercourse, and the risk varies between approximately 1:20 and 1:300. Furthermore, the risk of the receiving partner contracting the virus through anal intercourse is estimated to be approximately double that of the active partner. The presence of a sexually transmitted disease that causes open sores has been found to increase the risk of HIV transmission during intercourse without a condom 5–10-fold. The risk of HIV transmission through oral intercourse is lower than through vaginal or anal intercourse.
Scientific information on the effect of antiviral drug therapy on the infectiousness of HIV
15. C and D referred, firstly, to a statement published by Swiss infection specialists in a Swiss medical journal in 2008.
16. According to the statement, HIV is not transmitted through sexual intercourse if the HIV-positive individual is taking antiretroviral drugs, the HIV viral load measured from their blood is less than 40 copies/ml, and they do not have another concurrent sexually transmitted disease or open sores in their genitals, and if there are no other factors that could increase the risk of transmission involved in the sexual act. According to the statement, this assertion is contingent on the HIV-positive individual taking their drugs systematically and seeing a physician on a regular basis, the HIV viral load in their blood having been undetectable for a period of at least six months, and their being free of other sexually transmitted diseases. The statement goes on to emphasise that even established couples must understand that suspending other protective measures requires that both partners are committed to the drug therapy and to rules regarding sexual contact outside their relationship (Vernazza P, Hirschel B, Bernasconi E, Flepp M; HIV-infizierte Menschen ohne andere STD sind unter wirksamer antiretroviraler Therapie sexuell nicht infektiös [HIV-infected people free of other STDs are sexually not infectious on effective antiretroviral therapy]; Swiss National AIDS Commission EKAF, 2008).
17. C referred, secondly, to a longitudinal study called HPTN 052, which followed 1,763 couples in which one partner was HIV-positive and the other was HIV-negative. HIV-infected subjects were randomly assigned to receive antiretroviral therapy either immediately or after a decline in their CD4-lymphocyte count to the level that was the threshold for initiating drug therapy in their respective home countries. The study was discontinued prematurely, as 27 HIV infections were observed in the delayed-therapy group and one HIV infection in the early-therapy group, which were most likely to have been contracted from the subjects’ own partner. According to the study, antiretroviral drug therapy was 96% effective in preventing the transmission of HIV. C called attention to the fact that the one HIV infection observed in the early-therapy group had been contracted three months after the initiation of drug therapy, and that the conditions laid down in the Swiss statement were therefore not met in that case.
18. The HPTN 052 study concluded that the early initiation of antiretroviral therapy benefits both HIV-infected individuals and their partners. On the other hand, the study acknowledged several limitations. The study only concerned individuals who were in a stable relationship and who had been offered counselling and condoms, which was likely to have contributed to the low incidence of HIV infections. A condom had reportedly been used in almost all instances of sexual intercourse (Cohen MS, Chen YQ et al, HPTN 052 Study Team; Prevention of HIV-1 infection with early antiretroviral therapy. N Engl J Med. 2011 Aug 11: 365(6): 493–505). According to C, very few male couples had taken part in the study.
19. C also referred to a team of Canadian researchers, who had analysed studies on the effect of antiretroviral drug therapy on infectiousness. The analysed studies had reported four infections during drug therapy, all occurring soon after the initiation of drug therapy. No infections had been observed in cases where the effectiveness of the subjects’ drug therapy had been confirmed by HIV viral load tests.
20. The Canadian research team referred to the Swiss statement and concluded that unprotected sexual intercourse is a viable option for heterosexual couples in monogamous relationships if the HIV-infected partner has full virological suppression and both parties understand the limitations of the available data. The researchers also concluded that additional research was required to clarify, among other things, the impact of drug therapy on HIV transmission in same-sex couples. According to the researchers, more information was also still needed on condom use and its significance (Loutfy MR, Wu W et al; Systematic review of HIV transmission between heterosexual serodiscordant couples where the HIV-positive partner is fully suppressed on antiretroviral therapy; PloS ONE 8(2): 10.1371; 13 February 2013).
21. C went on to refer to the European PARTNER study, which had followed couples in which the HIV-positive partner was on antiretroviral drug therapy and had an HIV viral load of less than 50 copies/ml. To be included in the study, the couples had to have engaged in unprotected intercourse within the previous month. Before taking part in the study, the couples had been given information about safe sex and the protective effect of condoms.
22. According to a conference abstract published on the PARTNER study (Rodger A, Bruun T et al; HIV transmission risk through condomless sex if HIV+ partner on suppressive ART; PARTNER study; Abstract 153LB), the premise of the study had been that there was no information available on the absolute risk of HIV transmission in situations where an individual’s viral load was stable as a result of drug therapy and where no condom was used during sexual intercourse. The limited information that was available was largely focused on vaginal sex. According to the abstract, no infections had been observed during the study that could be virologically linked to the HIV-infected partner. According to a statistical analysis, the upper limits of a confidence interval of 95% were 0.4 infections per 100 couple years of follow-up (CYFU) for all types of unprotected intercourse, and one infection per 100 CYFU for anal intercourses. From the perspective of the receiving partner in anal intercourse, the upper limit of risk was 1.97 infections per 100 CYFU if no condom was used. The abstract concluded that the risk of transmission through both vaginal and anal intercourse is extremely low on the whole, but that more information is still needed with regard to sexual activity between men.
23. C stated that the aforementioned statistical analysis and the cited confidence intervals have been subject to some debate among researchers. As the expert opinion signed by C also indicates, follow-up in the PARTNER study has been discontinued with regard to heterosexual couples. With regard to male couples, the study team is planning to extend the study until 2017, as anal intercourse is estimated to carry a higher risk of HIV transmission, and as there is currently less information available on the preventive effect of antiretroviral drug therapy on HIV transmission through sexual activity between men than with regard to heterosexual couples.
24. According to C, antiretroviral drug therapy is the best way to prevent transmission. Condoms may have significance in addition to drug therapy, as they prevent mucous membrane contact.
Advice given to HIV patients
25. In 2009, the policy at Aurora Hospital had been to advise patients that HIV can be transmitted between humans through sexual activity and by the transfer of blood. Patients had also been told to disclose their HIV infection to their sexual partners and advised that concealing the fact could have legal consequences. Furthermore, according to C, patients had been told, as per general international practice, that the use of condoms during intercourse prevents the transmission of HIV. Patients had been advised to contact the infection clinic or an on-call infection specialist in the event of a condom breaking, and told that in these cases their partners could be administered a four-week course of anti-HIV medication, which is at least 80% effective. According to C, the advice has not changed since 2009.
26. According to the expert opinion signed by D, the National Institute for Health and Welfare does not have detailed information about the advice given to patients in 2009. However, to D’s knowledge, physicians and healthcare professionals had had an HIV treatment manual at their disposal. According to the manual, an HIV infection must always be disclosed to sexual partners, careful use of a condom is the most reliable way to prevent transmission, a water-soluble or a silicon-based lubricant must always be used in addition to a condom during anal intercourse, and a condom must also be used with another HIV-positive partner, as their virus may be different and unprotected intercourse can accelerate the progression of the disease in both partners.
Applicable legal provisions
27. Pursuant to Chapter 21, Section 13 of the Criminal Code, a person who intentionally or through gross negligence places another in serious danger of losing his or her life or health, shall be sentenced, unless the same or a more severe penalty for the act is provided elsewhere in the law, for imperilment.
28. For imperilment to be punishable therefore requires, firstly, that a serious danger has been caused to the life or health of another. As has been stated in the legislative rationale for the provision, the “serious danger” caused must be tangible (Government bill No 94/1993, p. 99).
29. There is no definitive answer to the question of how serious the danger must be and how high its probability for it to be deemed tangible. The provision covers all possible situations. The Criminal Code bill (Government bill No 94/1993, p. 99) indicates that the legislator wanted the wording of the provision to emphasise that both the probability of the consequence and the seriousness of the potential consequence need to be taken into consideration when evaluating the seriousness of an offence.
30. In its case law, the Supreme Court has addressed the question of what is required to establish the constituent elements of imperilment in its precedent-setting rulings Nos KKO:1995:143, KKO:1997:108 and KKO:2003:115, which concerned cases where the accused had opened fire on a residence. The rulings indicate that “serious danger” as referred to in the provision may materialise even if the probability of causing injury is low. In its precedent-setting ruling No KKO:1995:143, the Supreme Court sentenced the perpetrator for imperilment even though the perpetrator had been able to see, at the time of shooting, that there was no-one in the line of fire. The Supreme Court found that the probability of the fired shots hitting a human being directly on the one hand and of ricochets or shards of glass causing the death of someone inside the residence on the other had been low at most. In its ruling No KKO:2003:115, the Supreme Court examined the tangibility of danger in a case in which a perpetrator had fired a shotgun into a residence through a door. The Court found that all those inside the residence had been in serious danger of their life or health as per Chapter 21, Section 13 of the Criminal Code regardless of where in the residence they were at the time of the shooting and regardless of whether it was probable or even feasible that they could have been hit by the shots directly.
Whether contracting HIV is a serious danger
31. Based on the evidence, the Supreme Court concluded that without timely diagnosis and proper treatment, HIV leads to AIDS, and ultimately to the death of the patient. If the infection is caught early and proper treatment administered, HIV is no longer fatal, and the infection also no longer has the same kind of impact on patients’ quality of life and life expectancy as before. The life expectancy of HIV patients is close to that of healthy individuals.
32. As explained in paragraph 7, not all patients show early symptoms of the infection. The disease can remain asymptomatic for several years. The virus cannot be eliminated from the body even with drug therapy, and if a patient fails to take their drugs regularly, the virus may be reactivated. Irregular use of HIV drugs can also lead to the virus developing a resistance to the medication. It is of vital importance to the success of drug therapy that patients take their drugs regularly, every day, for the rest of their lives. HIV-positive individuals also need to attend regular blood tests and doctor’s appointments. Managing the disease requires self-discipline from patients.
33. The Supreme Court found that although HIV can now, and could in 2009, be treated effectively, contracting the virus constitutes a serious consequence as referred to in Chapter 21, Section 13 of the Criminal Code. As stated above, there are uncertainties and sometimes delays in the diagnosis of the disease, the disease is chronic, and managing it requires lifelong commitment to a meticulous treatment and follow-up programme.
Whether transmission is probable
34. As stated in paragraph 29, when evaluating whether a serious danger has been caused as per Chapter 21, Section 13 of the Criminal Code, both the probability of the consequence and the seriousness of the potential consequence need to be taken into consideration.
35. Based on current knowledge, if taken exactly as instructed, antiretroviral drugs lower the viral load in an HIV-positive individual’s blood to a level where it cannot be detected by current techniques. Statistically speaking, this lowers the risk of transmission considerably. Systematic antiretroviral drug therapy must therefore be considered to be an effective way to lower the risk of transmission.
36. On the other hand, all the advice given to HIV patients still emphasises that unprotected sexual intercourse carries a risk of transmission. For example, Helsinki University Central Hospital advises its HIV patients to use a condom. It would seem fair to assume that the advice given to HIV-positive patients by specialist medical care professionals is based on the latest medical knowledge. If condom use had no impact on the risk of HIV transmission, the advice given to patients would reflect that. Based on the evidence, the protective effect of condoms alongside drug therapy is based on the fact that they prevent mucous membrane contact.
37. The Supreme Court found that the likelihood of transmission through unprotected sexual intercourse can, in the light of the scientific information discussed above, be considered to be extremely low, if the HIV-positive individual is on effective drug therapy and there are no other factors that could increase the risk of transmission. However, appropriate drug therapy alone does not mean that unprotected sexual intercourse with an HIV-positive individual would not place their partner in tangible and serious danger as referred to in the Criminal Code and case law. As stated on numerous occasions above, the infectiousness of HIV increases with the presence of open sores in the mucous membranes that are exposed during intercourse and other sexually transmitted diseases, which the partners may not even know they have. The risk of transmission through anal intercourse is greater than through vaginal intercourse. The magnitude of the risk of transmission in a single sexual contact also cannot be evaluated directly on the basis of scientific studies. Scientific information always represents the average risk. The probability of transmission needs to be evaluated on a case-by-case basis. The Supreme Court’s evaluation of probability in this case is discussed below.
Whether negligence in the context of sexual activity can be deemed to be “gross”
38. Establishing the constituent elements of imperilment as per Chapter 21, Section 13 of the Criminal Code requires, as stated in paragraph 27, that the serious danger has been caused intentionally or through gross negligence. Pursuant to Chapter 3, Section 7(1) of the Criminal Code, the conduct of a person is negligent if he or she violates the duty to take care called for in the circumstances and required of him or her, even though he or she could have complied with it (negligence). Pursuant to Chapter 3, Section 7(2) of the Criminal Code, whether or not negligence is to be deemed gross (gross negligence) is decided on the basis of an overall assessment. In the assessment, the significance of the duty to take care, the importance of the interests endangered and the probability of the violation, the deliberateness of the taking of the risk and other circumstances connected with the act and the perpetrator are taken into account.
39. The Supreme Court examined the gravity of a perpetrator’s negligence in its precedent-setting ruling No KKO:2014:41. The ruling related to a case in which A had given B methadone, which had given B methadone poisoning. A, who had been prescribed methadone as a form of substitution therapy, had been told about the dangers of methadone use and instructed not to give methadone to others. A had been aware that B was under the influence of drugs and alcohol. Although A had known B to be a habitual drug user, A had not known, nor taken steps to establish, whether B was aware of the special dangers associated with methadone. Having given methadone to B under these conditions, A was found to not have taken due care considering the circumstances. A’s negligence was deemed to have been gross, and a sentence for imperilment was passed.
40. Similarly, when evaluating whether due care is taken in the context of sexual activity, weight can be given to what an HIV-positive individual knows about their illness, the associated risk of transmission, and methods of protection, as well as to whether their partner is aware of their condition. As such, everyone, regardless of their medical history, is responsible for their own sexual behaviour and protection. As a rule, however, individuals engaged in a sexual relationship can only know about the prevalence of diseases in general, and not whether their partner is sick and how, nor in what way and how meticulously their disease may have been treated, and what the risks associated with sexual activity might therefore be. As the question comes down to trusting in the sincerity of another, one partner cannot be left to bear all the responsibility for the risk of infection.
41. The Supreme Court found that the responsibility of HIV-positive individuals who are aware of their condition to take appropriate precautions for sexual activity is greater than usual, and that it is justifiable to evaluate any potential negligence in this respect, and the gravity of such negligence, taking into account not just the knowledge of both partners of each other’s medical history but in particular the HIV-positive partner’s understanding of their own condition and the necessity of appropriate precautions.
Evaluation of A’s actions
42. A had, between 3 February and 11 March 2009, engaged in anal intercourse with B on multiple occasions without informing B of the fact that he was HIV-positive. As has been established in lower courts, A must have been familiar with the advice according to which HIV-positive individuals have to use a condom during sexual intercourse, and must have known that knowledge of the infection could have substantially affected B’s decision as to whether or not to engage in sexual activity with him. All the instances of intercourse had been unprotected.
43. Laboratory test results presented by A indicated that the HIV viral load in his blood had been measured on 21 October 2008 and on 15 January 2009. His viral load had been below the limit of detection on both occasions, less than 47 copies/ml the first time and less than 30 copies/ml the second time. The viral load in A’s blood had also been below the limit of detection on seven occasions of testing between 2 April 2009 and 6 October 2010. According to a statement by a German physician on 1 April 2011, the viral load in A’s blood had been undetectable since June 2007. Based on the evidence, C testified that the risk of transmission had, at the time of the act, been extremely low.
44. The HIV viral load in A’s blood had been low at the time of the act. The risk of HIV transmission had therefore been low. On the other hand, by using a condom in addition to drug therapy, A could have complied with the advice generally given by healthcare professionals, and thus eliminated the risk of transmission practically completely.
45. Furthermore, A had not disclosed his illness to B, which would have allowed B to make a conscious decision as to whether or not to engage in sexual activity with A, whether a condom should be used, and whether he should in any case get himself tested afterwards. B told the Court that he would not have consented to sexual intercourse had he known about the infection.
46. As stated in paragraph 33, the Supreme Court considers contracting HIV to be a serious consequence. A had, by his aforementioned actions, placed B in serious danger of losing his health. Considering the potential consequences of A’s failure to take due care in the circumstances, the importance of the interests at risk, and the fact that A had taken the risk knowingly, A’s negligence can be deemed to have been “gross”.
47. The question of imposing a punishment was not put before the Supreme Court.
The Court of Appeal’s judgment stands.
The ruling was delivered by Justices Liisa Mansikkamäki, Pertti Välimäki (dissenting), Juha Häyhä (dissenting), Jorma Rudanko and Tuula Pynnä. Referandary Jukka Siro (proposal).
Referendary’s proposal and dissenting opinions
Temporary Judicial Secretary Siro: Paragraphs 1–14 of the Supreme Court’s ruling matched the referendary’s proposal. The rest of the proposal read as follows:
Evidence on the infectiousness of HIV
The expert witnesses heard in the Supreme Court also testified as follows on the probability of HIV transmission:
The probability of HIV transmission through unprotected sexual intercourse depends substantially on the HIV viral load in the HIV-positive partner’s blood. The higher the HIV viral load, the likelier it is for HIV to be transmitted. The viral load can be managed by means of antiretroviral drugs. While the HIV viral load in the blood of an HIV-positive individual who is not on drug therapy can be as high as tens of thousands of copies per millilitre, antiretroviral drug therapy can lower the number of virus copies to a level that cannot be measured by current detection techniques. At the moment, the limit of detection is usually some dozens of virus copies per millilitre.
Several studies on the effect of HIV-positive individuals’ antiretroviral drug therapy on the infectiousness of HIV have been conducted in recent years (most notably the PARTNER and HPTN 052 studies). These studies have stemmed from a statement published by Swiss infection specialists in 2008, according to which HIV is not transmitted from an HIV-positive individual to an HIV-negative individual through unprotected sexual intercourse if the following conditions are satisfied: (i) that the HIV-positive individual is under the care of a treating physician and takes the medication exactly as indicated; (ii) that the HIV viral load is below the level of detection of common viral load tests (“undetectable”) and has been for at least six months; and (iii) that the HIV-positive individual does not have other sexually transmitted diseases or open sores in their genitalia. A further condition is that no other factors that could increase the risk of transmission, such as sex toys, rape, or other activities that could damage mucous membranes, are involved in the sexual act. No cases of HIV transmission from an HIV-positive individual to an HIV-negative individual through unprotected sexual intercourse when these conditions have been satisfied have come to light in the aforementioned studies or otherwise.
Current scientific information focuses on heterosexual couples, and further research is required in some respects. Despite this, it can be concluded that, when the aforementioned conditions are satisfied, the risk of HIV transmission through unprotected sexual intercourse between men is also extremely low at most. However, as it is not possible to eliminate HIV from the body altogether, the possibility of transmission cannot be ruled out completely.
The effectiveness of antiretroviral drug therapy is contingent on regular use of the drugs. If drug treatment is discontinued, the viral load in a patient’s blood can return to the pre-treatment level in less than two weeks. Lowering the viral load back to a level below the limit of detection takes almost as long as if the patient had never been on drug therapy. However, missing one dose of the drugs does not cause this kind of an effect. If a patient’s viral load remains continuously undetectable, it can be considered extremely likely that they have taken their drugs as instructed.
Thanks to modern drug therapy, HIV no longer leads to AIDS, but patients do need to stay on drug therapy for the rest of their lives. However, HIV drug therapy has no notable side effects, and HIV treatment is free for patients in Finland. HIV does not have a material impact on patients’ life expectancy, at least in the case of patients who are over 40 years old. However, there is still a strong social stigma attached to HIV, which may compromise patients’ quality of life, for example, by making it more difficult for them to find a partner.
Despite advances in medicine, HIV patients had been, at the time of the act, and are still advised to always use a condom and to disclose their condition to their sexual partner. Although appropriately administered drug therapy provides more effective protection than a condom, condoms also have significance due to open sores or other sexually transmitted diseases.
Applicable legal provisions
Pursuant to Chapter 21, Section 13 of the Criminal Code, a person who intentionally or through gross negligence places another in serious danger of losing his or her life or health, shall be sentenced for imperilment.
The legislative rationale for the provision indicates that the legislator wanted the wording “serious danger to life or health” to emphasise that both the probability of the consequence and the seriousness of the potential consequence need to be taken into consideration when evaluating the gravity of the danger caused (Government bill No 94/1993, p. 99). However, the bill also states that the danger referred to in the provision must be tangible (p. 99). Courts have taken this to mean that the offence must have genuinely jeopardised the life or health of another. Endangering the life or health of another therefore does not constitute imperilment, if the consequence of the act is solely theoretical or highly improbable, even if the potential consequence itself is serious.
In its case law, the Supreme Court has addressed the question of what is required to establish the constituent elements of imperilment in its precedent-setting rulings Nos KKO:1995:143, KKO:1997:108 and KKO:2003:115, which concerned cases where the accused had opened fire on a residence. The rulings indicate that “serious danger”, which is one of the constituent elements of imperilment, may materialise even if the probability of causing injury is low. In its ruling No KKO:1999:102 in a case involving an attempt to transmit HIV, the Supreme Court dismissed a charge for attempted murder on the grounds that no genuine risk of HIV transmission had been caused by the accused biting, spitting and scratching with bloody fingers, as the risk of transmission had been solely theoretical.
Evidence on A’s health
In this case, laboratory test results presented by A indicated that the HIV viral load in his blood had been measured on 21 October 2008 and on 15 January 2009. His HIV viral load had, on both occasions, been below the limit of detection, which had been 47 copies/ml the first time and 30 copies/ml the second time. The test results indicate that the viral load in A’s blood had also been below the limit of detection on seven occasions of testing between 2 April 2009 and 6 October 2010, where the limit of detection had been either 16 copies/ml or 20 copies/ml. A also presented a statement given by a physician on 1 April 2011, according to which the viral load in his blood had been undetectable since June 2007. Based on the evidence, C testified that the risk of transmission had, at the time of the act, been extremely low.
Based on A’s evidence of his viral loads, there is no reason to doubt the appropriateness of A’s antiretroviral drug therapy. No claims of A having had other sexually transmitted diseases or open sores in his genital area, or of other factors that could have increased the risk of transmission having been involved in the sexual acts, were presented in the case.
The Supreme Court should find that there is no reason to question the competence of the expert witnesses’ evidence on HIV. In the circumstances of the case, the probability of HIV transmission should therefore be evaluated on the basis of the expert opinions and testimonies.
The Supreme Court should find that the evidence on the probability of HIV transmission in general and on A’s condition proves that the probability of B’s contracting HIV from A had been extremely low. Although HIV can still, despite advances in medicine, be considered to be a serious disease, transmission of the virus to B in these circumstances was so improbable that the kind of danger required to establish the constituent elements of imperilment had not materialised.
The Supreme Court should also find that there is no reason to arrive at a different conclusion on the grounds that HIV patients are advised, during treatment, to always use a condom and to disclose their condition to their sexual partner. The question before the Court is whether A had placed B in danger of his life or health in a manner that constitutes imperilment. This question must be approached on the basis of the relevant provision of the Criminal Code and the up-to-date medical evidence presented in the case. The advice given to HIV patients concerning their responsibilities and the probability of transmission, on the other hand, may have been based on other premises, such as clinical perspectives.
The Court should therefore dismiss the charge for imperilment.
Justice Häyhä: I agree with the proposal.
Justice Välimäki: I agree with Justice Häyhä.