In the first ruling of its kind in the world, a court in Geneva, Switzerland, has quashed the 18 month prison sentence of a young HIV-positive man previously convicted of HIV exposure, after accepting that the risk of sexual HIV transmission on successful treatment is close to zero.
(Update: A more detailed version of this story now appears on aidsmap.com.)
The Geneva Court of Justice acquitted the young man on Monday, reports Le Temps. He had been found guilty last November after two female complainants testified that they had unprotected sex with him (which is against the law in Switzerland, whether or not there is disclosure, and even if the person with HIV is undiagnosed at the time), even though neither were infected.
Article 231 of the Swiss Criminal Code allows prosecution by the police – without the need for a complainant – of anyone who “deliberately spreads a dangerous transmissible human disease.” Informed consent to unprotected sex does not nullify the offence, and even the attempt to spread a dangerous transmissible human disease (i.e. HIV exposure without transmission) is also liable to prosecution.
During the original court case, reports The Geneva Tribune, an (unnamed) medical expert witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the accused’s lawyer, Nicole Riedle, had entered the Swiss Statement from the Swiss Federal AIDS Commision (EKAF) into evidence, and Geneva’s deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing to interview an expert, the court declined to accept any further evidence.
Interestingly, it seems that it was Bertossa himself who appealed to the Court of Justice for Monday’s hearing, where the expert testimony of Professor Bernard Hirschel, one of the co-authors of the Swiss statement, persuaded the Court that the man had not been infectious when he had unprotected sex.
This now suggests that in Switzerland effectively treated HIV-positive individuals should no longer be prosecuted for unprotected sex, and it is hoped that this ruling may well have consequences for other jurisdictions that have HIV exposure laws.
This is most urgently required in the US and Canada – however, until nationally recognised experts make statements of their own about the beneficial effect of treatment on transmission, neither legal systems are likely to accept it. Sadly, both the CDC and WHO/UNAIDS have so far summarily dismissed the Swiss statement, despite increasing numbers of experts agreeing with it.
Significantly, Yves Bertossa is quoted in Le Temps as saying that despite the fact that there is still debate regarding the residual risks of transmission in people on successful treatment this should not make a difference to the court: “One shoudn’t convict people for hypothetical risks.”
Ce débat, estime Yves Bertossa, ne devrait pas influencer la justice: «On ne condamne pas les gens pour des risques hypothétiques», fait-il valoir.