Correction: Louis Gay tells me that he is not the first gay man to be prosecuted in Norway.
I am the first one to be prosecuted for practicing “safer sex” (oral sex, only. with no condom and no contact with sperm or precum), without transmitting any virus!
Original post: Yesterday, Bent Høie (Conservative), the leader of the Standing Committee on Health and Care Services, raised the issue of HIV in the Norwegian Parliament (Stortinget). He was concerned about the rise in new diagnoses in the country, and discussed increases in unprotected sex amongst gay men and other men who have sex with men, as well as lack of knowledge of HIV and HIV-related stigma within broader Norwegian society.
Notably, he linked these concerns with Section 155 of the Norwegian Penal Code. This infectious disease law enacted in 1902 is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status, and consents. There is no distinction between penalties for HIV exposure or transmission. Both “willful” and “negligent” exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for “willful” exposure or transmission and three years for “negligent” exposure or transmission.
The law is currently in the process of being revised by the so-called Syse-committee (named after its chair, Professor Syse but officially titled The Norwegian Law Commission on penal code and communicable diseases hazardous to public health), but at the moment, the current law stands. At least seventeen individuals have been prosecuted since 1999 – and until this year all prosecutions were as a result of heterosexual sex despite the fact that most HIV transmission in Norway is the result of sex between men.
Earlier this year, Norwegian prosecutors decided to prosecute the first gay man under this draconian law. Although transmission had been alleged, phylogenetic analysis ruled out Louis Gay’s virus as the source of the complainant’s infection. Still, he is being prosecuted for placing another person at risk despite the only possible risk being unprotected oral sex, and despite Louis disclosing his HIV-positive status prior to any sex (which the complainant denies).
Louis decided to go public in November 2011 during the initial police investigation. Since then he has given interviews to some of the largest circulation newspapers and magazine in Norway, as well as to national TV and radio. I had the pleasure of meeting Louis in Oslo in February when he addressed the civil society caucus that produced the Oslo Declaration.
I chose to go public before any final decision was made from the State attorney office, with the chance of provoking them to prosecute me because they don’t want to risk being criticized by media of giving in to pressure. This is fine with me. Like I’ve stated before I want to have my case tried before a court. Anyway! Now we all have to wait until the trial before we get any further answers about my case. In the meantime the discussion whether we should have a law like this (and using it like in my case) is protecting the society from more infections or just making it worse, continues.
So, yesterday, Louis’s brave stand paid off. Conservitive MP Bent Høie, the leader of the Standing Committee on Health and Care Services, mentioned Louis’ case in Stortinget.
Then it is a paradox that the social-liberal Norway still has an HIV-paragraph that is criminalizing HIV-positive people’s sexuality. This has now been brought to a head by the public prosecutor who has brought charges against HIV-positive Louis Gay, who has not infected any other person and who conducted what we call “safer sex”, which in reality is the health authorities’ recommendations. I am aware that Syse-committee is now working on this issue, but it is still necessary to highlight this in this debate, because current criminal law works against prevention strategy and stigmatize HIV-positive people. I hope that today’s debate could be the start of that we again have a strong political commitment to reducing new infections of HIV and to improve the lives of those who are HIV-positive – which in reality are two sides of the same coin.”
(Unofficial translation by Louis Gay)
I’m so impressed with Louis’s courage and determination, and I think that he actually might just be making a difference by going public. If you support Louis, let him know by leaving a comment here, or on his own blog, or at POZ.com.