Switzerland: New study examines every criminal prosecution; finds Swiss law discriminatory

A new and important study of criminal HIV exposure and transmission cases in Switzerland was published yesterday.

Update: An English-language version of the Swiss AIDS Federation’s six page summary is now available. Download the pdf here.

With the support of Swiss National Science Foundation (see the press release in French and German) and the Swiss AIDS Federation (AIDS-Hilfe Schweiz/AIDS Suisse Contre Le SIDA), researchers Kurt Pärli and Peter Mösch Payot examined 39 individual cases dealt with in 51 separate cantonal (lower and higher) and federal court hearings between 1990 and 2009.

Of the 27 accused where country of origin was known, 11 were born in African countries; 9 were born in Switzerland; 4 were born elsewhere in Europe; 2 were born in Asia and the near East; and one was born in the US.

Three cases did not involve sex. One case involved a doctor who disclosed the HIV-positive status of one of his patients; another case involved the Red Cross and contaminated blood; and the third one involved biting.

The remaining 36 cases involved sex – 31 heterosexual sex, and five sex between men. All but three of these 36 sexual cases involved consensual sex (as opposed to rape or sexual assault).

[Note: the only English-language report so far gets this wrong, saying that all 36 cases took place with the informed consent of the victim. That’s the problem with laws like these: in this case “consensual” means both parties agreed to have sex, and not that the HIV-positive partner had disclosed prior to sex.]

Admittedly, it is a bit complicated, since it is possible to be prosecuted for consensual, unprotected sex with disclosure under Article § 231 (spreading of dangerous diseases). In 21 cases, this law was used. Consequently, in more than half of the convictions there was no transmission of HIV, simply ‘HIV exposure’. Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 (c. €53,000) as compensation to the ‘victims’. The report authors point out that these sentences are longer than for other (non-HIV-related) ‘crimes’ charged under this statute.

Below is the table of cases (and scenarios discussed in court) adapted from the report.

Unfortunately, the impressive 149-page paper (complete with comparisons with other jurisdictions) is only available in German (this is the link to the complete pdf; 1.4MB ). A six-page fact sheet from the Swiss AIDS Federation summarising the findings is also available in German (and now English).

The authors conclude by recommending the repeal of Article § 231, because, they argue, the law is discriminatory by unfairly placing 100% responsibility on the HIV-positive partner which is in direct contradiction with public health policies.

[Many thanks to my native German-speaking partner, Nick, for helping me understand the paper.]

UN Secretary-General, Ban Ki-moon: criminalising HIV transmission “reinforces stigma”

United Nations Secretary-General Mr. Ban Ki-moon has spoken out for the first time against the criminalisation of HIV transmission.

Speaking at the HIV/AIDS review during the 63rd United Nations General Assembly, held in New York on June 16th, Mr. Ban spoke out about laws and policies that criminalised people with, and at risk of, HIV. He ended his speech by stating:

In recent years, a growing number of countries have taken steps to criminalize HIV transmission.

In theory, this has been done to prevent the spread of infection. In practice, it has done the opposite – reducing the effectiveness of HIV prevention efforts by reinforcing the stigma.

Such measures send the message that people living with HIV are a danger to society. We must instead encourage tolerance, compassion and inclusion.

Today, the Global Network of People living with HIV (GNP+) joined Mr Ban’s call to end HIV-related stigma and discrimination and highlighted similar calls from UNAIDS Executive Director Michel Sidibé, who said, in his address to the Meeting of the Programme Coordinating Board, held in Geneva on June 23th that

punitive laws that discriminate against men who have sex with men, sex workers, injecting drug users, migrants and people living with HIV must be removed from the statute books, country by country.

I must say that I’m honoured and proud to be working with both organisations as a consultant to aid in their work towards these goals.

Australia: New legal practitioners guide launched in NSW (updated)

Last Thursday, Australian High Court Justice Virginia Bell helped launch a new criminal HIV transmission guide for legal practitioners produced by New South Wales’ HIV/AIDS Legal Centre (HALC).

Speaking at the launch, leading civil rights lawyer, David Buchanan, noted that there was a growing tension between the “extraordinary range and depth of the public health forces marshalled against laws that criminalise people with HIV” and public opinion.

However, he said that the movement against criminalisation is not clear-cut, since “the prosecution of people with HIV in [New South Wales] has the potential both to vindicate people’s basic rights to protection from harm, yet also the potential to disrupt one of the world’s more successful exercises in the protection of public health.”

The full text of David Buchanan’s extremely interesting and insightful address (which, at over 3000 words, plus 30 footnotes, was too long to post in its entirety here) can be downloaded (as a pdf file) here. [Update: June 22nd. The previous version was not correctly formatted and resulted in the notes being out of sync. Apologies. This has now been corrected.]

Update July 1st: HALC tells me they have a limited number of hard copies of the guide available on request.

You can now download a pdf version of the guide here.

HALC also tells me they are working on an Australian-wide version of the Guide, although this is not likely to be ready until late in the year. However, they will have two more publications regarding criminal transmission coming out in July and August which I will upload when I receive them.

UK: Report shows police mishandling of investigations into alleged criminal HIV transmission

Below are the opening paragraphs of a news story I wrote for aidsmap about a new THT report about how the police in England are handling investigations into criminal HIV transmission.

The full report, Policing Transmission, can be downloaded from THT.


A new report by the Terrence Higgins Trust (THT) launched [on January 27th] at the House of Commons has revealed a systematic mishandling of complaints for alleged criminal HIV transmission in England & Wales. The report, Policing Transmission was welcomed by the Association of Chief Police Officers (ACPO), which acknowledged that “too many times we have got it wrong”.

There have been “scores, if not hundreds” of arrests since the first conviction for reckless HIV transmission in England and Wales, that of Mohammed Dica in October 2003, noted THT’s Sir Nick Partridge speaking at the launch of the report in the House of Commons, hosted by Lord Norman Fowler, Vice Chair of the All Party Parliamentary Group on AIDS.

Sir Nick said that whilst most police investigations had been dropped due to a lack of evidence, during the course of these ‘failed’ investigations – which had lasted up to a year – “lives had been turned upside-down and some came close to being destroyed”.

During the period 2005-6, there was an average of one arrest every two weeks. Concerned at this number of arrests and aware of the cost, in terms of “public resources and private misery”, THT approached ACPO and the Metropolitan Police Service (MPS) in order to examine the role of the police in criminal HIV transmission investigations.

Read more here.

Africa: PlusNews publishes in-depth analysis of criminalisation throughout the continent

PlusNews, the global online HIV and AIDS news service of the United Nations Integrated Regional Information Networks (IRIN), has published an excellent in-depth analysis of criminalisation in Africa.

A collection of short articles focusing on various aspects of criminalisation in different parts of the continent can be downloaded as a pdf here, or read online here.

They include:

I reproduce here an article providing an overview of the situation alongside a criminalisation map of Africa which they say will be updated once they receive more accurate information from readers in Africa.


AFRICA: Will criminalising HIV transmission work?


Monday 08 December 2008

Countries in sub-Saharan Africa are looking at a new way of preventing HIV infections: criminal charges. But experts argue that applying criminal law to HIV transmission will achieve neither criminal justice nor curb the spread of the virus; rather, it will increase discrimination against people living with HIV, and undermine public health and human rights.

UNAIDS has urged governments to limit criminalisation to cases “where a person knows his or her HIV-positive status, acts with the intention to transmit HIV, and does in fact transmit HIV”. The reality is that intentional and malevolent acts of HIV transmission are rare, so in most instances criminal prosecutions are not appropriately applied.

In Switzerland, a man was sent to jail earlier in 2008 for infecting his girlfriend with HIV, even though he was unaware of his HIV status, and a Texas court recently sentenced a man living with HIV to 35 years in prison for spitting on a police officer, although the chances of the officer being exposed to the virus were negligible.

Laws making HIV transmission an offence are not new to the developed world, but the trend has been growing in African countries, where higher prevalence levels make such laws all the more attractive to policymakers.

“Africa has burst into this whole frenetic spasm of criminalising HIV,” said South African Justice Edwin Cameron, who is also HIV positive, at the International AIDS Conference in Mexico earlier this year.

In Uganda, proposed HIV legislation is not limited to intentional transmission, but also forces HIV-positive people to reveal their status to their sexual partners, and allows medical personnel to reveal someone’s status to their partner.

Most legislative development has taken place in West Africa, where 12 countries recently passed HIV laws. In 2004 participants from 18 countries met at a regional workshop in N’djamena, Chad, to adopt a model law on HIV/AIDS for West and Central Africa.

The law they came up with was far from “model”, according to Richard Pearshouse, director of research and policy at the Canadian HIV/AIDS Legal Network, who maintains that the model law’s broad definition of “wilful transmission” could be used to prosecute HIV-positive women for transmitting the virus to their babies during pregnancy.

People living with HIV have expressed concerns that the growing trend to criminalise HIV infection places legal responsibility for HIV prevention solely on those already living with the virus, and dilutes the message of shared responsibility.

UNAIDS has warned that using criminal law in cases other than intentional transmission could create distrust in relationships with healthcare workers, as people may fear the information will be used against them in a criminal case. Such laws could also “discourage HIV testing, since ignorance of one’s status might be perceived as the best defence in a criminal law suit.”

Some policymakers have called for HIV legislation as a means to protect women from HIV infection, but the irony is that sometimes these laws may result in women being disproportionately prosecuted. Many women find it difficult to negotiate safer sex or to disclose their status to their partner.

What are the alternatives? UNAIDS recommends that instead of applying criminal law to HIV transmission, governments should expand programmes proven to have reduced HIV infection. At the moment, there is no information indicating that using criminal law will work.

Global Criminalisation Scan website now live

The Global Network of People Living with HIV (GNP+) today launched their Global Criminalisation Scan microsite, an incredibly important and useful new resource for anyone interested in criminal HIV exposure and transmission laws.

The GNP+ Global Criminalisation Scan site is a living, growing document of laws, judicial practices and case studies of criminalisation worldwide. Data from over 150 jurisdictions are currently available with more to come early next year.

I am proud to say that I have been part of the small team working on this site. I have also written a series of articles for the in-depth section examining the real difficulties in implementing these laws using case studies from around the world.

These include articles on:

The full press release is below.

Global Criminalisation Scan now online
December 1, 2008

Today, a new collection of information on the criminalisation of HIV transmission was published online at criminalisation.gnpplus.net.

Criminalising the sexual transmission of HIV is a trend seen in countries around the world. Globally hundreds of people have been sentenced for non-intentional HIV transmission, exposing others to the potential transmission of HIV, or failing to disclose their status to their sexual partners, with punishments of up to life imprisonment.

People living with HIV and their advocates believe that these prosecutions hinder prevention efforts and increase stigma. Such criminalisation unjustly places responsibility exclusively on the shoulders of people living with HIV and diminishes the empowerment of individuals to gain control over their health irrelevant of their HIV status.

GNP+ and partner organizations have documented laws criminalising the transmission of or exposure to HIV to support advocacy efforts with providing an easily accessible ‘clearing-house’ of resources, research, and initiatives on the subject.

The Global Criminalisation Scan is the first ever effort attempting to document laws, judicial practices and case studies, around the criminalisation of HIV transmission on a world wide scale. Information from over 150 jurisdictions worldwide is already online. Early in 2009, information from over 200 jurisdictions will be available.

The Global Criminalisation Scan presents the laws on HIV transmission or exposure, as well as offering an analysis of individual cases of criminal prosecution. Where possible the Global Criminalisation Scan links back to media and other reports and research, including court proceedings.

So far four out of the six Global Criminalisation Scan partners have gone ‘live’ with their research and data is now available from Asia/Pacific, Europe/Central Asia, Central and Latin America, as well as North America.

Currently the Global Criminalisation Scan partners are the Asia Pacific Network of People living with HIV ( Asia Pacific), GNP+ North America (North America), Grupo Genesis Panama Positivo on behalf of RedLA+ (Central/Latin America), and Terrence Higgins Trust (Europe/Central Asia).

The Network of African People living with HIV (NAP+) and the Caribbean Network of people living with HIV (CRN+) will be joining this group in 2009 and launching the sections on Africa and the Caribbean respectively.

The Global Criminalisation Scan is based on earlier work carried out in 2005 by
GNP+ Europe and Terrence Higgins Trust (THT).

The Global Criminalisation Scan is a living document. More information will be added as it comes in. We encourage everyone to send additional information on their country or region to the contacts listed on the regional pages or to the global contact address at GlobalCriminalisationScan@gnpplus.net

UNAIDS says criminal prosecutions do more harm than good

This week UNAIDS has released a fantastic new policy paper firmly establishing that criminal prosecutions for HIV exposure or transmission – whether through sex, drug use or mother to child transmission – do far more harm than good.

The paper coincides with the the XVII International AIDS Conference in Mexico City, where this issue is high on the agenda. There’ll be more from the conference soon, but for now, this policy paper is an extremely important addition to the anti-criminalisation armamentarium.

In some countries, criminal law is being applied to those who transmit or expose others to HIV infection. There are no data indicating that the broad application of criminal law to HIV transmission will achieve either criminal justice or prevent HIV transmission. Rather, such application risks undermining public health and human rights. Because of these concerns, UNAIDS urges governments to limit criminalization to cases of intentional transmission i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it. In other instances, the application of criminal law should be rejected by legislators, prosecutors and judges….


Download the entire paper (8 pages) here.

Australia: New booklet clarifies that disclosure – even with condoms – is mandatory in NSW

A new booklet, ‘Disclosing your HIV status’, produced by the New South Wales HIV/AIDS Legal Centre (HALC) highlights that both public health and criminal laws mandate that diagnosed HIV-positive people in NSW must disclose their HIV status prior to any kind of sexual contact, even when condoms are used.

Under the NSW Public Health Act 1991, if you are HIV positive you are legally required to disclose your HIV status to a person before you have sex with them. Sex in this context refers to any form of vaginal or anal intercourse or oral sex.

It is no defence that the other person should have asked you about your HIV status or that they should have worn a condom or practised other safe sex procedures. You are still legally required to disclose your HIV status.

It is no defence if you wear a condom or practice other safe sex procedures without telling them of your HIV status. It is no defence either, if the social situation makes it difficult for you to disclose, for example if you have anonymous sex.

Because of the nature of this type of offence, there may be problems of proof as to whether you disclosed or not. Often it can be one person’s word against another.

The penalty for non-disclosure under the Public Health Act is a
maximum fine of $5,500.

There are also more serious offences relevant to non-disclosure of HIV status. Under the NSW Crimes Act 1900 it is a crime to deliberately, recklessly or negligently transmit or attempt to transmit HIV. This carries a sentence of up to 25 years imprisonment. Or, the crime of grievous bodily harm may be applied which carries up to 7 years imprisonment.

These criminal offences are based on the principle that an HIV positive person has the responsibility not to infect or put another person at risk of infection. This is a complex area of law. For more information about criminal charges relating to HIV infection of others, contact the HIV/AIDS Legal Centre (HALC).

Under civil law a person may also be sued for damages by an infected person, for deliberately, negligently or recklessly infecting them.

Wearing a condom or using another safe sex procedure would be a strong defence against the criminal charges or civil claim. Although it’s the law, the HIV/AIDS Legal Centre (HALC) doesn’t believe you should be penalised for non-disclosure if, when you had sexual intercourse, you practised safe sex. For more information on this issue, contact HALC.

The story alerting me to the existence of the booklet, from Sydney’s gay newspaper, The Sydney Star Observer, is below.

I have also obtained a pdf copy of the booklet from HALC, and have made it available for download for seven days (until May 20th 2008) from here.

After that date, you should contact HALC directly for a copy.

by Harley Dennett
Sydney Star Observer – Issue 917 – Published 8/05/2008

Anonymous sex and condoms are no defence for failing to disclose one’s HIV status to a person before having sex, a new booklet launched this week by High Court Justice Michael Kirby advises.

But almost anyone else – like an employer, health insurer, sporting team – doesn’t need to know, according to the new publication by the HIV/AIDS Legal Centre, aimed at clarifying contradictory public health and disclosure laws in NSW. Several men were charged under similar laws in other states last year.

One set of public health laws, with a maximum penalty of $5,500, allows no defence for not disclosing before anal or oral sex contact occurs, even if the situation makes this difficult. But reckless non-disclosure under the Crimes Act can carry a 25-year sentence, but under that Act safe sex could be used as a defence.

“There are some circumstances that the law requires you to reveal it, like before sex and in certain professions or sports like boxing, but by and large you don’t have to reveal your status,” Kirby said at the launch on Tuesday.

“That’s a good thing because there are no really efficient privacy laws in Australia to protect everybody. Even in our relatively enlightened country the fact people know you are HIV-positive can sometimes be a bad thing for a person to live with.”