One Shouldnt Convict People for Hypothetical Risks:

Developments in European Criminal Law and Policy

following Increased Knowledge and Awareness of the
Additional Prevention Benefit of Antiretroviral Therapy
E J Bernard, HIV Justice Network, United Kingdom
Issues

Lessons Learned

The additional prevention effect of antiretroviral therapy (ART)

has the great potential to beneficially impact the HIV epidemic
as well as the lives of people living with and at risk of HIV.
However, criminal justice actors and law- and policymakers
are still coming to terms with this game changing scientific
advancement. Their reactions have the potential to either
improve or harm both the HIV response as well as the human
rights of people living with HIV.
Description
A desk review of criminal proceedings, policy documents
and newspaper reports archived on the HIV Justice Network
website (www.hivjustice.net) as part of the research for our
forthcoming Advancing HIV Justice 2 report was undertaken to
better understand the criminal law implications of increased
knowledge and awareness of the additional prevention benefit
of ART as they relate to laws, prosecutions and policies related
to HIV non-disclosure, potential or perceived exposure and/or
transmission.

The impact of viral load on infectiousness has resulted in

a number of European jurisdictions revising or revisiting
their HIV-related criminal laws or prosecutorial policies.
The Netherlands was the first country to consider low viral
load as a factor in assessing HIV risk in 2005, resulting in the
essential decriminalisation of all but intentional exposure or
transmission.1 Following the Swiss Statement published in
January 20082 a small number of highest courts, governments
and prosecutorial authorities have accepted ARTs impact on
reducing HIV-related sexual risk. These include: Geneva Court
of Justice, Switzerland (2009); Denmark Ministry of Justice
(2011); Crown Prosecution Guidance for England and Wales
(2011); Crown Office and Procurator Fiscal Service Guidance for
Scotland (2012); the Court of Appeal for Skne and Blekinge,
Sweden and Swedish Ministry of Health and Social Affairs
(2013), and the Czech Republic Supreme Court (2015).

The Netherlands

SWEDEN

Switzerland

DENMARK
UNITED
KINGDOM
THE
NETHERLANDS

Czech republic
SWITZERLAND

European prosecutions 2013-15

During the 30-month period covered by the forthcoming
Advancing HIV Justice 2 report4 (April 2013 to October 2015),
we found a total of 176 reported arrests and/or prosecutions in
24 countries. Of these, 37 (21%) were in Europe: Austria, Czech
Republic, England & Wales, Finland, France, Germany, Iceland,
Ireland, Italy, Russia, Slovakia, Spain, Sweden and Switzerland.
Where laws, practices or legal precedents are outdated there is
an urgent need for reform in line with UNAIDS 2013 guidance.
The map shows where laws, policies and/or binding legal
precedents reflect up-to-date knowledge in HIV risk. This
strongly suggests that there is an urgent need for scientists and
clinicians to work closely with HIV and human rights activists,
advocates and lawyers in Austria, Finland, France, Germany,
Iceland, Ireland, Italy, Russia, Slovakia and Spain.

1.

van Kouwen W and Bruinenberg K. Supreme Court of the Netherlands, Criminal Division. HIV
Transmission: Criminalisation. J. Crim. L. 70: 485-489, 2006.

2.

Vernazza P et al. Les personnes sropositives ne souffrant daucune autre MST et suivant un traitment
antirtroviral efficace ne transmettent pas le VIH par voie sexuelle. Bulletin des mdecins suisses 89
(5), 2008.

3.

UNAIDS. Ending overly-broad criminalisation of HIV non-disclosure, exposure and transmission: Critical
scientific, medical and legal considerations. Geneva, May 2013. Available at: http://www.unaids.
org/en/media/unaids/contentassets/documents/document/2013/05/20130530_Guidance_Ending_
Criminalisation.pdf

4.

To be published in November 2015. Available at http://www.hivjustice.net

5.

van Kouwen W and Bruinenberg K. op cit.

6.

Quoted in Bernard EJ. Swiss court accepts that criminal HIV exposure is only hypothetical on
successful treatment, quashes conviction. Aidsmap.com, February 25, 2009. Available at: http://www.
aidsmap.com/en/news/CEFD90F2-34F1-4570-B9CF-1F0DB462AC9D.asp

7.

The Netherlands was the first country to consider viral load as

a factor in HIV risk. In 2005, a Supreme Court ruling which
closely examined scientific evidence of sexual transmission risk
and found that the per-act risk of unprotected sex, especially
when viral load is low, does not create a considerable chance
of transmission substantially narrowed the scope of the law.
As a result, only intentional HIV exposure or transmission is a
crime.5

Switzerland: New Law on Epidemics only criminalising intentional transmission passed in lower house.
HIV Justice Network, March 9, 2012. Available at: http://www.hivjustice.net/news/switzerland-newlaw-on-epidemics-only-criminalising-intentional-transmission-passed-in-lower-house

In 2009, the Geneva Court of Justice quashed an HIV exposure

conviction after accepting testimony from Professor Bernard
Hirschel, one of authors of the Swiss statement. It was
Genevas Deputy Public Prosecutor, Yves Bertossa, who had
called for the appeal after hearing about the Swiss statement.
Bertossa told Swiss newspaper, Le Temps: On ne condamne
pas les gens pour des risques hypothtiques (One shouldnt
convict people for hypothetical risks).6 Of note, Professor
Hirschel is on record as saying one of the primary purposes
of the Swiss statement was to prevent further prosecutions
under Article 231 of the Swiss Criminal Code. There have been
no further reports of prosecutions for HIV exposure since the
ruling. Article 231 will be repealed in January 2016, when the
Epidemics Act 2013 will come into effect. The changes mean
that a prosecution will only take place if there is a malicious
(and scientifically possible) attempt to infect someone with HIV
or another serious communicable disease.7
Denmark
In 2011, Denmarks Minister of Justice suspended a law used
to prosecute HIV exposure and/or transmission once he
became aware of both the improvements in life expectancy
and reduction in infectiousness as a result of ART.8 In August
2012, a Danish court acquitted a person living with HIV who
had previously been found guilty under the suspended law. A
government working group continues to consider whether or
not to revise the law or to completely abolish any criminal law
relating to HIV non-disclosure, exposure or transmission.

8.

Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group. HIV Justice
Network, February 12, 2011. Available at: http://www.hivjustice.net/news/denmark-justice-ministersuspends-hiv-specific-criminal-law-sets-up-working-group

9.

Crown Prosecution Service. Prosecution Policy and Guidance: Intentional or Reckless Sexual
Transmission of Infection. Last updated July 15, 2011. Available at: http://www.cps.gov.uk/legal/h_
to_k/intentional_or_reckless_sexual_transmission_of_infection_guidance/

10. Scotland: New guidance on prosecutions clarifies law, recognises treatments impact on infectiousness.
HIV Justice Network, May 2, 2012. Available at: http://www.hivjustice.net/news/scotland-newguidance-on-prosecutions-clarifies-law-recognises-treatments-impact-on-infectiousness
11. Sweden: Court of Appeal acquits HIV exposure case, recognises National Board of Health and Welfare
endorsement of Swiss statement, Minister for Social Affairs will consider reviewing application of law.
HIV Justice Network, October 29, 2013. Available at: http://www.hivjustice.net/news/sweden-courtof-appeal-acquits-hiv-exposure-case-recognises-national-board-of-health-and-welfare-endorsementof-swiss-statement
12. Private correspondance with Robert Hejzak, Board Chair and Jakub Tomej, lawyer, Czech AIDS Help
Society.

Next steps
UNAIDS guidance (2013) notes: Where criminal liability is
extended to cases that do not involve actual transmission
of HIV, such liability should be limited to acts involving a
significant risk of HIV transmission. The determination of
whether the risk of HIV transmission from a particular act is
significant should be informed by the best available scientific
and medical evidence.3 It is vitally important that criminal
justice system actors and law- and policymakers are educated
so that HIV-related criminal laws and policies are applied
rationally and fairly. Scientists and clinicians must, therefore,
work more closely with HIV and human rights activists,
advocates and lawyers in jurisdictions where the prevention
impact of ART is not currently legally recognised, in order
to prevent miscarriages of justice and to ensure that the
prevention benefit of ART is correctly understood by criminal
justice actors, policymakers, the media and those most at risk.

United Kingdom
The impact of ART on transmission risk was incorporated
into the 2011 revision of the Crown Prosecution Guidance for
England and Wales9 and included in the 2012 Crown Office
and Procurator Fiscal Service Guidance for Scotland.10 In effect,
both sets of guidance clarify that charges will not be filed if the
accused is on treatment with an undetectable viral load and
was counselled by a healthcare provider that this meant there
was a low risk of transmission. However, there have been no
test cases to date.
Sweden
Following a 2011 campaign to review the application of the
criminal law relating to HIV by the three main civil society
organisations focused on HIV, sexual health and human
rights, the Public Health Agency of Sweden and the Swedish
Reference Group for Antiviral Therapy issued the Swedish
statement on sexual HIV risk in 2013. This has impacted
a few lower court judgements, and allowed clinicians to
individualise how they counsel their patients, although the
Supreme Court still considers condoms to be the only way to
avoid an HIV exposure prosecution. However, there is growing
political interest in revising the obligation to disclose in the
Communicable Diseases Act for people living with HIV, since
more than 90% of those diagnosed are on fully suppressive
treatment.11
Czech Republic
In May 2015, a gay man living with HIV was sentenced to six
years in prison for attempted grievous bodily harm based on a
number of accusations of oral sex together with one disputed
accusation of continuing with anal sex for one second after a
condom had failed. In June, the Czech AIDS Help Society filed
an extraordinary appeal to the Czech Supreme Court on his
behalf based on the facts that (a) the court did not check the
level of viral load of the client, and (b) that the actual risk of
HIV transmission in the above situations was close to zero.
Although it can take the Supreme Court six months or more
to make a decision, the Court suspended the enforceability
of the judgement pending a decision in August 2015. This is
an extraordinary measure which is usually exercised in cases
where the Court later dismisses the prosecutions case.12

www.hivjustice.net
info@hivjustice.net
15th European AIDS Conference, Barcelona, October 2015.
Abstract PE18/2