Prosecutions for HIV exposure and transmission in Germany are based on existing bodily injury and aggravated assault laws (German Penal Code Articles 223 and 224), following a Federal Supreme Court decision in 1988 that unprotected sex without disclosure was attempted bodily injury.
Prosecutions have been based on general criminal or similar laws and have all related to perceived risk of HIV transmission associated with sexual acts, including acts relating to sex work. People have been prosecuted where it was alleged that an act included a risk of HIV exposure although the allegation is not supported by science; where their actions may have included a possible ‘exposure’ to HIV – with no transmission alleged; and in cases where HIV transmission alleged.
People have generally not been prosecuted when condoms have been used. In that context, it’s important to note the 2018 case where a German court found a man guilty of an offence for removing a condom midway through sex against his female partner’s explicit request, although neither party was living with HIV.
An important ruling by the District Court in Aachen in 2016 appears to have signaled a change to Germany’s approach to HIV criminalisation. The case involved a man who had condomless sex with his former female partner (numerous times) without disclosing his HIV-positive status. The woman is now also HIV-positive. The Aachen ruling found the case was more appropriately considered negligent injury, rather than intentional harm, acknowledging that the accused did not want to infect his partner. Until the Aachen case, courts had considered that HIV non-disclosure prior to sex without a condom meant the defendant “considered acceptable” that their partner would acquire HIV, and that intent could be ascribed to their actions. The Aachen ruling instead applied a principle of dolus eventualis, which is much closer to the common law definition of ‘recklessness’ than to malicious intent.
A 2016 ruling from the District Court in Tiergarten is also important as the judge suggested that gay men in Berlin should bear some responsibility for their HIV acquisition if they don’t ask about their partner’s HIV status and then proceed to have condomless sex. In considering a charge of grievous bodily harm, the court found it must consider all factors in a case. This case involved two gay men who had sex without ever talking about HIV or having an HIV test. Experts presented evidence that in Berlin, one in every eight gay man is living with HIV. Both men were part of a group where HIV is prevalent, and everyone knows that one can become infected with HIV without a condom. The complainant also had a close friend living with HIV in his close circle of friends and was very familiar with the subject. The judge found that in a city like Berlin, a gay man starting a sexual relationship with another man, without asking questions or taking precautions, cannot claim their HIV infection was caused intentionally or negligently, and needs to consider their role as they must realise they are taking a risk.
In March 2020, a man was acquitted of attempted dangerous bodily harm on the grounds that he was on effective treatment so HIV could not be transmitted. The complex case also involved charges of sexual abuse, based on the sexual relationship between the 57 year old teacher and his former student, aged 14 years; noting he had ceased teaching before the sexual relationship began.
The country’s highest profile case involved allegations against a female pop singer, Nadja Benaissa. In August 2010, she was found guilty and given a two-year suspended sentence plus 300 hours of community service following complaints from three men that she had unprotected sex with them without disclosing her HIV status. One of the men has tested HIV-positive. Her very public arrest received international press coverage. Until the Benaissa case, only men had been prosecuted. In 2010 two further women were prosecuted in Hessen and Hamburg. and in 2014, a 30-year-old female sex worker was sentenced to four years prison and five years of preventive detention for having unprotected sex with several clients, despite there being no allegations of HIV transmission.
OFFENCES AGAINST THE PERSON
Section 224 – Causing bodily harm by dangerous means
(1) Whosoever causes bodily harm
1. by administering poison or other noxious substances;
2. by using a weapon or other dangerous instrument;
3. by acting by stealth;
4. by acting jointly with another; or
5. by methods that pose a danger to life,
shall be liable to imprisonment from six months to ten years, in less serious cases to imprisonment from three months to five years.
(2) The attempt shall be punishable.
Collection of HIV criminalisation cases prior to 2010
Position paper on HIV criminalisation by Deutsche AIDS Hilfe, 2012
Our thanks to Australian law firm Hall & Willcox for their research assistance to confirm current relevant legislation.