Prosecutions for potential or perceived HIV exposure and transmission in Germany primarily take place under Section 224 of the German Penal Code – attempted or actual grievious bodily harm – following a Federal Supreme Court decision in 1988 that condomless sex without disclosure was attempted grievous bodily harm, and that HIV was life-threatening.
There are two states of mind that can apply to such acts: negligence (forsees harm but does not intend it to happen) and dolus eventualis (foresees harm and reconciles with themselves that this is likely to happen), depending on the facts of the case.
Since then there have been at least 50 cases – with at least five reported in the past couple of years: the most recent reported conviction took place in Freiburg last September. Penalties range from a fine (as was the case in Freiburg) for HIV ‘exposure’ to up to 10 years in prison for alleged HIV transmission.
Last week, Germany’s key HIV legal expert, Jacob Hösl (pictured above) – who was recently given an award by Aidshilfe NRW – gave an interview to Deutsche AIDS-Hilfe’s Magazine on recent developments in case law.
The entire interview is (roughly) translated below.
He pointed to three recent key developments in Aachen, Munich and Berlin.
We covered the Aachen case last year. Here, in a highly significant ruling, the District Court found that HIV transmission without prior disclosure was negligent injury, rather than intentional harm.
Later last year the Munich District Court confirmed an aquittal on appeal because the accused was on successful antiretroviral therapy and their viral load was undetectable. This is not the first time German courts have accepted this – the first was soon after the Swiss statement in 2009 – but Hösl notes: “One can at least say, ‘people living with HIV, who are undetectable due to HIV treatment, and have sex without a condom, without disclosure, are today legally much safer than they ware a few years ago’.”
However, without prosecutorial guidelines, German courts can also make unjust decisions. “There was even once a conviction because the viral load was 12 copies above the detection limit in a single test,” says Hösl. “Virologically, this is a completely absurd way to derive a probability of infection! ”
I’m pretty sure that future undetectable viral load cases won’t lead to a conviction.
But he says the latest ruling suggests that courts will accept viral suppression under treatment as a key element of proving that the accused couldn’t be negligent when having condomless sex without disclosure. “Whomever has this knowledge,” he says, “could not want to infect anyone. In other words, I can’t really shoot anyone if I know that I only have blank cartridges in the revolver.”
Finally, there was an “intrguiging” decision in Berlin earlier this year from the District Court in Tiergarten. It suggests that gay men in Berlin should bear some responsiblity for their HIV acquisition if they don’t ask about their partner’s HIV status and then proceed to have condomless sex.
Anyone considering these facts in a city like Berlin starting in this way with a partner, without asking questions, and without even taking precautions, cannot claim their HIV infection was caused intentionally or negligently, and need to consider their own part in this.
“The decision is an individual decision,” notes Hösl. “Nevertheless, it may have an effect because judges could now consider including these kinds of individual circumstances that have previously been ignored.” However, the case has now gone to appeal and Hösl isn’t “very optimistic this judgement will stand because the Supreme Court has been very clear about their position in the past.”
However, he concludes, “in cases where it comes down to viral load, it’s clear to say that a new direction has been taken. I’m pretty sure that future undetectable viral load cases won’t lead to a conviction.”
HIV and rights: Let’s talk science
Published in Deutsche AIDS-Hilfe’s Magazine on April 14th 2016.
Is something changing in terms of prosecutions for HIV exposure and transmission? Some judgments of late seem to indicate this could be the case. Dirk Ludigs spoke with Jacob Hösl, lawyer and expert on “HIV and criminal law”.
Mr. Hösl why is HIV transmission and even HIV ‘exposure’ punishable? The law does not apply to flu or syphilis, while those are also potentially fatal diseases?
That is the central question. This is due to several factors. Firstly, it relates to the social situation at the time when HIV emerged in the Western world, and the fact that the main affected groups were perceived as minorities and partly as exotic. And secondly, it is because HIV is very difficult to transmit and is therefore also transmitted relatively infrequently. This led to the initial prosecution, but of course if HIV had been a widespread infection, it would have led to the collapse of the judicial system.
What is exceptional about the law from a legal perspective?
The basis of criminal liability is knowledge of one’s own HIV infection. Someone who does not know his or her HIV infection, however, can have no “intent” to infect another.
Which laws are used, how many people have been convicted, and is the average penalty?
The offence is bodily injury, namely grievous bodily harm – regulated through Section 224 of the Penal Code. One of the five constituent elements of this law is an assault that “endangers life”, and this is used as a rule for HIV transmission or exposure case. As for numbers of cases, there are not really that many, but you also have to expect a certain number of unreported cases. AIDS service organisations assume that there have been about 50 convictions in Germany since the first case in 1987. The penalty varies widely. But that is less dependent on the “fact” itself. What plays more of a role is whether the accused previously had a criminal record or if they were “first offenders” in relation to HIV. Also which court renders the judgment plays a role. Courts in the cities, where HIV is more of prevalent, are more relaxed. There is a significant difference in sentencing between HIV transmission and HIV exposure cases, however.
AIDS service organisations argue that it is often fear of rejection that keeps people with HIV from disclosing to their sexual partners, and the per act risk of transmission is also extremely low. Why have the courts ignored these arguments?
Here it is automatically assumed that a person with HIV who responds ‘no’ to the question about whether he or she is HIV-positive, wants to harm the other person. This how their ‘intent’ is derived. In addition, the courts have adopted a construction of HIV that makes it very difficult to exclude intent. For they say: It may be that the risk of HIV infection is relatively rare because the probability is low, but still each sexual act carries the full risk of infection, which the person living with HIV should know about. So he or she, therefore, tacitly accepts that their partner will become infected. The courts have made decisions like this again and again over the past thirty years, almost by default, because the Supreme Court (BGH) defined it this way in 1988. The BGH has, however, also said that each case must consider specific circumstances and factors. It has never been mandatory to start with intent, but that’s how the the courts tend to consider it.
Now it seems things are changing. Last year, a court in Aachen did not assume intent, but “only” negligence. What happened there?
This was an individual decision, but other courts may refer to it. I will also preface that the Supreme Court once said in another decision that one could possibly assume that in a long-term relationship you could assume that there was no ‘contingent intent’. ‘Contingent intent’ is, in short, a matter of whether or not the partner is contagious. Negligence would presuppose it is hoped that HIV transmission will not happen.
In this case, a man with HIV had met a woman. The two first slept together with condoms, but then when it came “in the excitement” to sex without a condom, it frightened the man so much that he broke up with her for several months. Then at the initiative of the female partner, they got together again and took an apartment together. At first they used condoms. Eventually his partner said something like: “We’re together now, and I’m on the pill, let’s do it out without.” So defendant couldn’t find any more excuses and agreed to condoles sex. Eventually, perhaps completely understandable, he said to himself: “Now it’s too late anyway, it’s probably already happened.” And indeed, it did result in transmission. But with these special considerations, the Court accepted that the defendant was not indifferent to whether or not his partner acquired HIV, but found he was conflicted and hoped it does not happen.
And is that really new, that these internal conflicts of the accused play a role in the judgement? Such situations are actually the rule rather than the exception.
Basically, the external circumstances are always checked, and one can perhaps say that the less “shabbily” the accused person behaves, the less indifferent they appear to the fate of the other person. The exciting thing is that this is the first case nationwide, which was so decided. Previously courts always considered condomless sex with with non-disclosure as intent.
Yet another case suggests that things are moving in HIV law. The Munich District Court confirmed an acquittal on appeal, because the viral load of the accused was under the limit of detection. Is that new?
This is not new, but here manifests a development. There was in 2009 already case which found this. A number of other cases in such situations have already been set in the preliminary investigation, and now there was just this acquittal on appeal after the accused had been acquitted in the first instance. The courts are increasingly considering that you can’t actually infect someone if you have sex without a condom on effective HIV therapy and have a viral load below the limit of detection.
Does that mean, however, that a person with HIV who is using “protection by therapy”, rather than using condoms, and not disclosing are still subject to the criminal law’s ‘Sword of Damocles’?
Yes it does. There was even once a conviction because the viral load was 12 copies above the detection limit in a single test. Virologically, this is a completely absurd way to derive a probability of infection! Under the latest ruling, it now looks like this: The person must be receiving medical treatment, regularly taking their HIV medication, remain stably virally suppressed and understand that there are not contagious. Whomever has this knowledge, could not want to infect anyone. In other words, I can’t really shoot anyone if I know that I only have blank cartridges in the revolver.
So up to date science is slowly reaching the courts?
One can at least say: people living with HIV, who are undetectable due to HIV treatment, and have sex without a condom, without disclosure, are today legally much safer than they ware a few years ago.
You said at the beginning that HIV transmission is only a criminal offence if you are aware that you are infected. That surely means that it is better not to be tested, at least from a legal perspective. Is not that crazy?
From a prevention perspective – everyone says, including the United Nations – of course, all of these case can be fatal. Whomever doesn’t test for fear of criminal consequences, cannot take HIV therapy if they are infected, and thus not only risk serious health problems, but also remain infectious. On the other hand, we know that a most new transmissions taken place when neither partner knows that there is an infection.
What would be desirable from the perspective of prevention?
To tel the truth, it would be desirable to completely abolish the offence. That would make it perfectly clear that everyone is responsible for their own health and can not rely on government agencies to protect them. HIV criminalisation creates the impression that the state can protect people from HIV by law enforcement, which of course it doesn’t. People think there is actually a duty to inform, so they don’t ask themselves. But what about all those who do not know they are infected? If there wasn’t HIV criminalisation, then it would be clear: the responsibility is 100 percent mine!
It seems there is a judgment from January this year which goes in this direction. The Tiergarten District Court considered that the person who exposes themselves to danger has a responsibility to protect themselves.
The decision is an individual decision, but the Court considered a valid argument. Nevertheless, it may have an effect because judges could now consider including these kinds of individual circumstances that have previously been ignored. The case was this: Two men got to know each through a chat portal, arranged to meet in a gay bar and had sex the same night. After a week they decided they wanted to get married and moved in together a short time later. Their statements as to when they slept together without condoms contradict each other, but both have consistently said that they never talked about HIV or even an HIV test. In the court case, experts stated that in Berlin one in every eight gay man is living with HIV. Everyone knows that one can become infected with HIV without a condom, and both knew that they were part of a group where HIV is prevalent. In addition the complainant knew someone living with HIV in his close circle of friends. He was very familiar with the subject. Here, the Court said: Anyone considering these facts in a city like Berlin starting in this way with a partner, without asking questions, and without even taking precautions, cannot claim their HIV infection was caused intentionally or negligently, and need to consider their own part in this. Whomever take such a risk must also realise they are taking a risk.
Can it be said in view of this latest judgment that we are entering a new phase in terms of HIV criminalisation?
Well, first of all, the complainant and the prosecution have appealed the Court’s ruling, so we have to wait to see whether this judgment holds on appeal. I find it intriguing that the Court of Appeal will have to deal with the reasoning of Court of the first instance – the judge in the case has a very good reputation because of the quality of his judgments. However, am not very optimistic this judgement will stand because the Supreme Court has been very clear about their position in the past. In cases where it comes down to viral load, it’s clear to say that a new direction has been taken. I’m pretty sure that future undetectable viral load cases won’t lead to a conviction. Science will prevail.
Mr. Hösl, thanks for the call.