HIV-related prosecutions in France previously used the law relating to ‘poisoning’ but now use the law relating to the ‘administration of harmful substances’. There have been at least 40 HIV criminalisation cases in France with the first known prosecution reported in 1998 with all cases based on the allegation that the accused did not disclose their HIV status before the act in question. All prosecutions have related to alleged HIV transmission related to sexual acts, with charges of exposure only applied as additional charges when the person had been charged concurrently with alleged transmission.
Intention to harm is not relevant to the law but might be taken into account when sentencing. The law itself does not recognise disclosure by the person with HIV or consent from their partner as a defence or exoneration of responsibility on the part of the HIV-positive person, although no cases where prior disclosure and consent took place have ever been prosecuted. Formal knowledge of HIV status prior to the sexual act is not an absolute condition for prosecution if it is deemed that the accused had to be aware of their status, even without having ever taken an HIV test.
People have not been prosecuted when condoms have been used as it is understood to satisfy the notion of protected sexual relationships. Having a low/undetectable viral load has been successfully used as a defence.
Prosecutions for HIV transmission in France are notable for a clear overrepresentation of heterosexuals with the majority of defendants being men and complainants, women. Given the demography of heterosexual epidemics, there is a significant under-representation of women from sub-Saharan Africa among female complainants.
In March 2019, the Cour de Cassation (France’s highest court) ruled that in the case of M.S…P.., the accused’s undetectable viral load meant that his bodily fluids could in no way be considered harmful and therefore the charge of “administration of harmful substances” was not applicable and the case was dismissed.
To make an attempt on somebody’s life by using or giving any product which can lead to death is a poisoning. Poisoning is sentenced to ten years of imprisonment. It is sentenced to life imprisonment when committed under the circumstances established in articles 221-2, 221-3 and 221-4. The first two paragraphs of article 132-23 related to minimum sentencing apply to the offence established in this article.
Article 222-15 The administration of harmful substance that have impaired the physical or psychological integrity of others is punished by the penalties mentioned in articles 222-7 to 222-14-1 according to the distinctions provided for by these articles.
Article 223-1 Exposing directly somebody to immediate death risk or injuries which would lead to disability or severe handicap resulting from a deliberate breach of a specific safety or caution rule dictated by law is sentenced to a year of imprisonment and a €15,000 fine.