Austria began prosecuting criminal HIV exposure and transmission in 1990 under existing laws, making it a crime to intentionally or negligently “commit an act likely to cause the danger of spreading a transmissible disease” (§ 178, 179 Criminal Code). Under the law, the disease must be (at least in part) reportable or notifiable. HIV is considered such an infectious disease, along with Hepatitis C, tuberculosis and gonorrhoea.
An ‘act’ capable of causing danger includes sexual activity such as vaginal or anal intercourse, oral sex or heavy kissing where there is biting or open wounds. An ‘act’ could also include the sharing of injecting equipment. If the act is carried out with the intent of spreading the disease, then the penalty is a maximum three years imprisonment or a financial penalty. If it is an act of negligence, then the penalty is a maximum of one-year imprisonment or a financial penalty.
At least 56 people living with HIV in Austria have been prosecuted, and at least 30 convicted.
In 1997 the Supreme Court held that vaginal intercourse with a condom and deep kisses do not constitute an offence since both can lead to transmission of HIV only in particular circumstances (as i.e. wounds in the mouth, bites etc).
In 2003 the Upper Regional Court of Graz (on appeal) – relating to the 1997 Supreme Court decision – held that it is no offence if an HIV-positive man orally serves an HIV-negative man (without ejaculation into the mouth).(Oberlandesgericht Graz 27.03.2003, 11 Bs 105/03)
Since the publication of a paper by the Austrian AIDS Foundation in 2005, critiquing cases of prosecutions for oral sex and sex with condoms, it appears that the legal arguments have focused on the individual level of risk during unprotected sex, focusing on viral load.
In all known cases involving undetectable virus load (or just blips) the prosecutors have either dropped the case or the courts have acquitted.
In December 2019, however, the Regional Court of Klagenfurt sentenced a 45-year-old man to eight months imprisonment (on probation) for having insertive vaginal and anal intercourse with a woman and a man (on separate accounts) without using a condom despite the fact that the man had a history of years of undetectable viral load and had been advised by his doctors that he was not infectious and need not use condoms to prevent HIV transmission (Landesgericht Klagenfurt 11.12.2019, 12 Hv 16/19w). His partners were not infected. The court relied on an expert opinion saying that – despite undetectable viral load – an infection still would be possible if the viral load would raise (and fall again) within the three-month control periods. The conviction is not final, and it is not known if he will appeal.
Austria’s AIDS Act (Aids-Gesetz) also prohibits people living with HIV from undertaking sex work and sex workers are required to undergo HIV tests every three months or face a fine of up to € 7,260.
In November 2021, an alliance of Austrian HIV/AIDS organisations published a position paper calling for the destigmatisation of HIV in the criminal law. They stressed that people living with HIV who regularly take medication and whose viral load is below the detectability limit ‘do not pose a threat’, and that the use of condoms and effective treatment should exclude the possibility of criminal prosecution. It is suggested that their demands have broad support from Austrian political parties, and are currently being examined by the Ministry of Justice.
Chapter One – Offences against life and body (§§ 75 – 95)
§ 85 StGB bodily injury with serious permanent consequences
(1) Who mistreats another on the body and thereby negligently forever or for a long time causes:
1. the loss of or serious damage to speech, sight, hearing or reproductive ability,
2. significant mutilation or striking disfigurement; or
3. severe suffering, infirmity or occupational disability of the injured party,
shall be punishable by terms of imprisonment ranging from six months to five years.
(2) Anyone who injures another person’s body or causes damage to health and thereby, negligently or otherwise, causes a serious permanent consequence (subsection 1) for the injured person, shall be punished with a term of imprisonment of between one and ten years.
Chapter Seven – Commonly Dangerous Offences and Offences against the Environment (§§ 169 – 187)
§ 178 StGB Deliberate endangerment of human beings by communicable diseases
Anyone who commits an act which is likely to cause a communicable disease to spread among humans shall be punished with a term of imprisonment of up to three years if the disease, by its nature, is one of the diseases which must be notified or reported, even if only to a limited extent.
§ 179 StGB Negligent endangerment of human beings by communicable diseases
Whoever negligently commits the offence threatened with punishment in § 178 shall be punished with imprisonment of up to one year or with a fine of up to 720 daily rates.
A guidebook, in German only, published by AIDS-Hilfe Austria on Laws, HIV and AIDS, published in 2013.
Austria’s Aidshilfen protest against discrimination of people with HIV in court and demand “the destigmatization of HIV-positive people in criminal law”. The support organisations state that HIV infection should no longer be covered by the criminal liability of Paragraph 178f. As long as this remains the case, “the current state of medical research must be taken into account when a court makes a decision. This means that both safer sex and the consistent use of drug therapy must be considered grounds for exclusion from proceedings.”
We thank RA Dr Helmut Graupner, Attorney-at-law, Vienna for providing editorial input to this page.
Our thanks also to Australian law firm Hall & Willcox for their research assistance to confirm current relevant legislation.