Italy does not have an HIV-specific law, but there have been at least 16 prosecutions for alleged HIV exposure or transmission using laws relating to causing bodily harm. Italy is also believed to be the first country in the world to find someone living with HIV guilty of murder for HIV transmission, when an Italian man was found guilty of culpable homicide in 2000, and sentenced to 14 years in prison for transmitting HIV to his wife, who subsequently died.
Case law has established that non-disclosure before condomless sex is considered a dolus eventualis (indirect intention), which is a similar standard of culpability as “recklessness” in common law systems. There are no known prosecutions where condoms have been used. In March 2017, the court recognised that low viral load significantly reduces HIV transmission risk (see case outline below).
The first known case involved imprisonment of an HIV-positive female sex worker in 1999. In that same year, a man was imprisoned for four years for infecting his partner. Between 2000 and 2007, there were at least eight more reported cases of people charged with serious or grievous bodily harm for HIV exposure or transmission. Sentences generally ranged from four to eight years (with one accused also fined €250,000), except for two cases. The first case, involving multiple complainants, involved an HIV-positive Catholic Navy chaplain accused of using his position to coerce numerous men into sexual acts, without disclosing his HIV status. His plea agreement, which included admitting all charges, resulted in a twelve-year sentence with 10 years suspended. The second case (described above) resulted in a 14 year sentence.
More is known about recent cases:
In March 2017, a Brescia court recognised the relationship between low viral load and reduced transmission risk. The case involved an HIV-positive man who faced charges associated with child prostitution, child sexual assault, and attempted bodily harm based on a presumed risk of HIV transmission (although HIV was not transmitted). The accused was convicted on all charges except for attempted bodily harm as the court found his low viral load, described as ‘almost equal to zero’ (pressoché pari allo zero) precluded transmission.
In a notorious case, in October 2017, an HIV-positive Italian man was sentenced to 24 years in prison after allegedly transmitting HIV to 32 people through condomless sex. Police investigations found the male partners of three of the women subsequently contracted HIV, as did a child of one of the women. The accused was charged with wilful injury and causing an epidemic by spreading a pathogen, which carries a life sentence, but the court rejected the charges, instead finding him guilty of causing grievous and incurable bodily harm. In October 2019, the Court of Cassation reassessed the case. They rejected prosecutors’ attempts to get the charges upgraded to include ‘malice’, and also considered four cases of alleged transmission that had been contested. It is unclear whether detailed phylogenetic analysis or other testing was conducted to ascertain whether any of the woman may have become HIV through other means, noting the defence lawyer is reported as saying the man has a ‘strain’ of HIV that is the most widespread in Europe’. In October 2020, the man was again found guilty of all charges.
In November 2017, a Romanian man was charged with grievous bodily harm and attempted grievous harm bodily harm after allegedly transmitting HIV to a former partner and having condomless sex with two other men. The man was on treatment, having explained to his former partner that his drug regimen related to cancer, and also claiming to have an allergy to rubber which prevented his use of condoms. The outcome of the case is not known.
In 2018, a man was accused of transmitting HIV to his wife. His wife also took out a civil action against him. The outcome of the case is not known.
In March 2019, media reported on a troubling case of a man who described himself as ‘negationist’, denying the existence of HIV despite been HIV-positive for more than 10 years. The man, a truck driver, travelled all over Italy for work and was reported as a regular user of dating websites, with allegations he may have had unprotected sex with more than 200 people. The man was found guilty of causing serious injuries and voluntary manslaughter after transmitting HIV to two women, one of whom had died. He was sentenced to 16 years and eight months’ imprisonment.
In November 2019, an HIV-positive man (originally from Brazil) faced charges of grievous bodily harm after allegedly transmitting HIV to a female partner, and also having condomless sex with two women, with no transmission.
In October 2021, a man living with HIV was charged with causing ‘very serious injuries’ to his partner after HIV was transmitted to her. The man had allegedly been aware of his status for a decade but neglected to tell his partner prior or during their three-year relationship, which came to an end after the woman noticed his health status in a hospital report. The defendant faces a penalty of up to twelve years’ imprisonment if convicted.
In January 2022, a man was sentenced to 22 years’ imprisonment for voluntary homicide after the death of his partner. The man was living with HIV but did not disclose this to his partner, who later contracted HIV herself and became ill. The woman’s condition was never diagnosed by doctors, three of whom are facing separate charges for this failure to diagnose, causing her to be untreated and to ultimately die. Other former partners who also contracted HIV from the man have come forward.
Article 582. Personal injury
Anyone who causes a personal injury to anyone, from which a disease in the body or mind arises, is punished with imprisonment from six months to three years.
(1) If the illness lasts no more than twenty days and does not contribute to any of the aggravating circumstances provided for in articles 583 and 585, with the exception of those indicated in number 1 and in the last part of article 577, the crime is punishable to the complaint of the injured person.
Article 583. Aggravating circumstances
The personal injury is serious and imprisonment from three to seven years applies:
(1) if the event results in a disease that endangers the life of the injured person, or an illness or an inability to attend to ordinary occupations for a longer time forty days;
(2) if the fact produces the permanent weakening of a sense or an organ;
(3) if the injured person is a pregnant woman and the acceleration of the birth derives from the fact.
The personal injury is very serious, and imprisonment from six to twelve years applies, if the fact leads to:
(1) an illness certainly or probably incurable;
(2) the loss of meaning;
(3) the loss of a limb, or a mutilation that renders the limb useless, or the loss of the use of an organ or the ability to procreate, or a permanent and serious difficulty of the speech;
(4) deformation, or permanent scarring of the face
Article 585. Aggravating circumstances.
In the cases provided for in articles 582, 583, 583-bis, 583-quinquies and 584, the penalty is increased from one third to half, if any of the aggravating circumstances provided for in article 576 is met, and is increased up to a third, if concurs with any of the aggravating circumstances provided for in article 577, or if the fact is committed with arms or with corrosive substances, or by a person who is misrepresented or by more than one person gathered ( 1 ).
For the purposes of criminal law, weapons are defined as:
1. gunshots and all others whose natural destination is offense to the person;
2. all the instruments to offend, of which the port is absolutely prohibited, or without a justified reason.
Explosive materials and asphyxiating or blinding gases are assimilated to weapons.
Article 2043. Compensation for unlawful acts
Any intentional or negligent act that causes an unjustified injury to another obliges the person who has committed the act to pay damages.
Our thanks to Australian law firm Hall & Wilcox for their assistance confirming current relevant legislation.