HIV-Sweden’s conference on

HIV and Criminal Law
June 9th 2009
World Trade Center, Stockholm
2 HIV and Criminal Law HIV and Criminal Law 3
Lars Lindberg, HIV-Sweden:
At the core of prevention
H
IV-Sweden’s involvement in the criminalisation of HIV-transmission and exposure has been strong for many
years. We have followed several cases that have come to our knowledge at a more or less close range. We have
also been involved in supporting and counseling both accused and defendants.
Our commitment is very much founded in how disproportionate we think the sentences and damages are
in relation to the injury. Also, and as important, we want to oppose the image created by mainly tabloids of
“HIV-men” and “HIV-women”. An image that describes HIV-positive people as monsters and potential mur-
derers.
We held a conference on the topic “HIV-men – Crime and Punishment” in 2003, with focus on the role of
the media.
Now we feel that it is high time to raise the issue again. Especially after the international AIDS Confer-
ence in Mexico last year when Sweden was presented as one of the countries with most cases, longest sen-
tences and highest damages in the world, when it comes to cases on HIV-transmission and exposure.
This kind of criminalisation of HIV and its impact on HIV-prevention is fre-
quently debated internationally. In Sweden it´s a “non-issue”. Neither media, nor
politicians or the legal system seems to see that there is something problematic in
what we feel is a very complex question. That also became clear during the prepa-
rations for this conference, when we despite hard efforts couldn’t get lawmakers or
representatives from the legal system to attend. Media showed a somewhat higher
interest, but far from satisfactory.
Even so, HIV-Sweden will continue to work with the topic. And this report can
be seen as a tool in the work of raising this question and as a resource of knowl-
edge in a subject that is an important part of HIV-prevention but also a question
about Human Rights and solidarity with people infected and affected by HIV.
HIV-Sweden is an umbrella organisation that works on HIV-issues at the national level to protect
the interests of HIV-positive persons. HIV-Sweden is an ideologically, party politically and religiously
independent organisation.
HIV–Sweden’s objectives are to:
· combat stìema. dìscrìmìnatìon and neeatìve attìtudes towards PIv-posìtìve peop|e
· work for the rìehts of PIv-posìtìve peop|e
· raìse awareness about PIv-posìtìve persons ìn socìety.
Telephone: +46 8 714 54 10, info@hiv-sverige.se, www.hiv-sverige.se
This report is a summary of the speeches and debates at the conference “HIV and criminal law”,
arranged by HIV-Sweden and held at World Trade Center in Stockholm, June 9 2009. For further
documentation go to www.hiv-sverige.se.
Editor: Gudrun Renberg, gudrun@context.nu
Layout and cover: Martin Nilsson, martingrafx@gmail.com
Photography: Melker Dahlstrand, melker@dahlstrand.se
Printed by: Haninge tryckeri, Haninge, August 2009
© HIV-Sweden.
HIV-Sweden considers good
prevention as a basic tool in the
struggle against HIV. Meaning that as
few people as possible get infected
with HIV.
HIV-Sweden’s point of view is that
the best way to achieve this is to
supply good support and counseling
to people that know that they live
with HIV, so that they can avoid
infecting somebody else. Another
way is through increased knowledge
among the general public so that
everybody can take responsibility
for their own sexual health, and
use protection when having sexual
contacts and thereby avoid getting
infected.
Criminalisation works against good
prevention since it leads to increased
stigma and rejection of persons living
with HIV.
The stigmatization of people
that carry the HIV virus implicates
negative consequences. Some of
these can be that the person who
lives with HIV chooses not to inform
about it and that fewer persons
choose not to be tested. That may
in the long run lead to that people
not realize the importance of
protecting themselves. This kind
of cover-up and secrecy lead to
that people don’t realize that HIV
exists in all parts of the community,
regardless of age, ethnic origin and
sex.
It is therefore the position of HIV-
Sweden that the only acts where
the intention or the direct intention
to transmit the HIV virus, and where
the transmission actually occurred,
should be considered a criminal
act.
Knowledge about HIV, a joint
responsibility and respect is the
foundation of good prevention – not
punishment.
The policy on HIV and criminalisation by HIV-Sweden:
Index of
contents
Andreas Berglöf, HIV–Sweden: “It is time for positive prevention”
Viveca Urwitz, National Unit for HIV/STI prevention: “New demands on counselling”
Lena Holmqvist, Faculty of Law, Uppsala University: “Punishment does not work”
Edwin Cameron, The Constitutional Court, South Africa: “We have the arguments”
Summary of the debate: “This is the end of the beginning”
Voices at the conference
4
6
9
12
16
20
page
Lennart Ekdal
moderated the
conference. Here
with Lena Holmqvist,
Uppsala University.
P
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H
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4 HIV and Criminal Law HIV and Criminal Law 5
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his conference is about responsibility. It is about
knowledge, the role of the media, human beings –
and it’s about human rights. At the centre lies crimi-
nal law and the impact of it.
But ultimately it’s about prevention. The criminalisa-
tion of HIV-transmission or exposure through sex is one
of the most important issues to deal with in the name of
HIV. It has many layers.
THE MONSTROUS “HIV-MAN”
The media headlines create an image of HIV-positive
people as being irresponsible and monstrous. This is
simply not true. One reason why Sweden has such a low
prevalence is likely because people living with HIV have
acted in a responsible way.
But Sweden is one of the countries in Europe with the
most convictions in this area. This is worrying and needs
analysis.
By 2008 a total of 8,455 cases of HIV have been reg-
istered in Sweden. We have registered 38 cases where
HIV-positive people have been convicted. This makes 0.4
percent of all infected people. So they are rare, but get
disproportional attention. And this has a highly negative
impact on HIV-prevention.
I started working with this issue in 2001 when I was
contacted by a man who was sentenced to a long im-
prisonment for transmitting the virus. He was also later
deported. We looked into the case and saw no proportion
between the act he had committed and the punishment.
This is one example of many.
A SENSE OF FALSE SECURITY
According to the Swedish Communicable Disease Act an
HIV-infected person has to tell about his/her HIV-status
before having sex. This we argue is counterproductive.
Not only does it place all the responsibility on one indi-
vidual. It also creates a false sense of security since not
everyone is aware of his/her HIV-status.
According to the Swedish Institute for Infectious Dis-
ease Control there could be up to 1,000 persons here who
are not aware of their HIV-status. In the rest of Europe
there are many more. It would be much safer to teach
everyone to take responsibility for their own body and
their own actions.
Last year we had 42,000 new cases of Chlamydia in
Sweden. Chlamydia also serves under the Swedish Com-
municable Disease Act where one is obligated to tell
about one’s STI. Maybe we should put these people in
prison too? After all, Chlamydia can lead to sterility and a
life without children and is highly infectious.
TO TELL OR NOT TO TELL
Why is it so hard to tell? One of our members stopped
telling after being rejected over and over again. Another
member lost his job. Another one said he was actually
told by his treating doctor not to tell, because of the risk
of being discriminated.
Receiving an HIV-positive test result can be very dif-
fcult. Some describe the time aIter that as a 'big blur¨
that can last for up to two years. So you may have signed
a paper with the rules for behavior according to the Com-
municable Disease Act while still in the above described
blur.
Some members have even been blackmailed. If they
don’t pay a large sum of money, they will be reported
to the police for trying to transmit the virus. Damages
around 700,000 crowns – approximately 70,000 Euros –
is not unusual in court cases when an HIV-positive person
is convicted for transmitting the virus.
So for many it is rather a self-protective instinct to not
tell, and the law can’t change that.
INFECTIOUSNESS AND EVIDENCE
In these cases where no one have been infected it’s debat-
able if the accused
has been able to
transmit the virus
at all. Last year
the Swiss National
AIDS Commis-
sion resolved that
an HIV-infected
individual without
an additional STI,
on antiretroviral
therapy and with
undetectable viral
load is sexually
non-infectious.
Another part
of the evidence is
phylogenetic anal-
ysis. The viruses
of the accused and
the plaintiff is
compared. If the
virus is similar it
shows that HIV-
transmission from
the accused to the plaintiff could have taken place – but it
doesn’t prove it. The test provides an estimate of related-
ness but it can’t answer the critical questions: Who in-
fected who and when?
THE ROLE OF THE MEDIA
Media headlines in Sweden can read as follows: “The
HIV-woman hunted her victims here”, or “New HIV-man
discovered”.
In her thesis “Beyond the age of innocence” Anna
Ljung followed closely the reporting of a well-known
case. that oI James Kimball. She fnds that the media
picture of this man becomes more and more promiscu-
ous. The portraying starts when he is suspected for rap-
ing women or deliberately putting them at risk of HIV-
transmission, to alleged oversexuality. The description
goes on to claiming that he was going to open a brothel in
Stockholm and make productions of child pornography.
Finally it is pointed out that he is bisexual and has had
unprotected sex with men.
Anna Ljung also notes that the women who are inter-
viewed by the press stress that they were fooled by the
charms of the “HIV-man”. They fell in love. The man’s
actions are on the contrary described as being motivated
by lust. Ljung writes: “The fact that females are depicted
as victims of romantic sensations, incapable of acting
independently from sexual lust, is dangerous.” This is
worth refecting over.
The media demonisation of HIV discourages people to
get tested. It fuels stigma against HIV-positive people and
the identity of them as a group. It damages prevention
because it doesn’t make it easier to be open.
POSITIVE PREVENTION
Historically we have in Sweden focused mostly on prima-
ry prevention, towards people who are not yet infected.
It is time we focus more on positive prevention and
fnd strategies that Iocus more on the needs and rights oI
people living with HIV. Strategies that include the reali-
ties and perspectives of them, information about HIV and
how to live with the virus. The participation of HIV-pos-
itive people, access to harm reduction measures and the
promotion of human rights must be part of this.
Positive prevention aims to increase the self esteem,
confdence and ability Ior HIV-positive people to protect
their own health and to avoid passing on the infection.
And positive prevention needs to be implemented within
an ethical framework that respects the rights and needs of
people living with HIV to enjoy sexual relationships, and
live a full and healthy life.
Positive prevention needs a supportive legal and policy
environment.
Andreas Berglöf, HIV–Sweden:
It is time for positive prevention
“The media demonisation
damages prevention.”
6 HIV and Criminal Law HIV and Criminal Law 7
T
wenty years of working with HIV and AIDS has led me
to understand that there are never easy answers or
solutions for the problems caused by HIV. There is
almost always an existential component. And it is seldom
clean cut and simple.
An intervention that seems simple and straightforward
and rational, can prove to have an opposite effect from
what was intended.
The HIV-virus has on its course throughout the world
acted as an isotope – demonstrating weaknesses, inequali-
ties and injustices in all societies. This is not only due to
the fact that it is a contagious and very hidden disease,
which in itself creates fear. And fear is the father of dis-
crimination.
It is also due to the fact that the virus is closely con-
nected to a very central and existential issue for human-
ity, namely sexuality. Being present everywhere but invis-
ible and taboo, sexuality will be surrounded by norms and
values that are unconsciously infuenced by prevailing
conceptions and power structures.
This should lead us all to have a special attention on
questions on rights and discrimination at all times. But,
unfortunately, we are all part of the prevailing uncon-
scious concepts and fears. The rules and laws constructed
and the prevention programs planned will most probably
be stamped by these irrational fears and concepts.
There is a need for some rules and regulations but how
they are constructed and, most of all, implemented, will
be particularly vulnerable to discrimination if we allow
our unconscious concepts and possible prejudices to play
a big role.
The virus will continue to challenge us. With the HIV-
treatment which is internationally called HAART, HIV
has changed from a contagious disease to die from to a
contagious disease to live with. This poses new demands
on prevention, care and support, and of course the rules
and regulations surrounding the virus and its consequenc-
es.
MEDIAL DEMONIZATION FEEDS THE EPIDEMIC
Prevention has a clear bearing on criminalisation. My
main focus here is: how can we prevent that a person
ends up where he or she risks prosecution?
We have never had as many people living with HIV in
Sweden and most Western countries as we have today.
Yet the general knowledge is very low.
Studies tell us clearly that the average citizen is not
aware that HIV is still spreading in Sweden. They are
aware of the existence
of HIV, and of the situa-
tion in Africa. But they
have very foggy ideas of
HAART – many think
that it is a medication that
has more or less solved
the problem and that
with medication HIV is
easy to live with. They
think that if people are
infected in Sweden,
they are gay, from Af-
rica, or a very few mentally ill
or criminal persons.
This refects the media report-
ing on HIV in Sweden. From
time to time the media highlight
the catastrophe in Africa. But
the highlighting of the situation
in Sweden is dominated by the
occasional “HIV-men” and “HIV-
women”.
This reporting in the media is
very counterproductive for preven-
tion. The media demonize people
who are prosecuted for crimes con-
nected with HIV. The effect is that
they are sometimes seen as alien
rather than human. And most people
will not identify with the pre-
dicament nor understand their own
possibilities for risk or their own
responsibility. This will enforce
the feeling that HIV doesn’t concern
everyone.
Likewise it is counterproductive to expose people who
are living with HIV as persons to be frightened of. It does
not promote the openness and acceptance we need to sup-
port people living with HIV.
Fear, discrimination and ignorance have repeatedly
been proven to be powerful tools to advance the spread of
HIV.
So I would argue that the media reporting actually is
contributing to the spread of HIV.
Instead of describing unfortunate people searching for
intimacy and confrmation. or people living in a vulner-
able situation, the media are depicting monsters.
THE SILENCE AROUND HIV
To succeed in prevention we need to mediate that there
are people living with HIV around us and that is nothing
to be afraid of. The probability to encounter HIV increas-
es for every year. We must also mediate that although
there is medication, life with HIV is not always simple. It
is a challenge that can be met only with the right support.
And this support must come from all of us.
We must do this in a way that at the same time avoids
the picture of people living with HIV
as victims or a burden for society. We
need planned communication efforts
that give other pictures of people liv-
ing with HIV: that of competent and
engaged people, struggling for them-
selves, for their peers and for society at
large.
We must communicate that it is pos-
sible to have sex with someone who
lives with HIV. If you are open, and if
you have knowledge. Openness around
people living with HIV will in the long
run counteract the demonization.
MOST INFECTIONS ARE SPREAD UNKNOWINGLY
CDC Atlanta, big in research in HIV
and AIDS prevention, has concluded
that it is much more likely to get in-
fected from a person who doesn’t
know his/her HIV-status than from
someone who does. A conclusion to
draw from this heavy research is that
people who actually get to know their
HIV-status do take responsibility and opt
for precautions.
And this is of course comforting. But
also, we know that not everyone can
manage to live up to their intentions all
the time. No-one can do that. It can be
smoking, it can be drinking, it can be eat-
ing too much. It can be to have protected
or unprotected sex. Or to tell someone
something diIfcult.
PSYCHOSOCIAL COUNSELLING IS NOT PRIORITIZED
Few scientifc articles deal with measures and methods
that support people living with HIV and help them man-
age their sexuality.
But I found a very interesting review from 2002, pre-
sented by J R Frances at the international AIDS confer-
ence in Barcelona. The study demonstrates that medical
treatment is prioritised over psychosocial wellbeing
nowadays. The researcher argues that HIV has become a
condition in which disease progression and treatment suc-
cess is measured by medical technology only.
This led to a thorough review on the psychosocial
needs of HIV-positive people in the UK. The review
clearly demonstrates the shortcomings in Britain in giv-
ing support to people living with HIV, in telling partners
about their condition or even to use measures for pro-
tected sex. The review shows that the more vulnerable a
person is the less support he or she was actually given.
The review points to a lack of counselling in general
but especially concerning counselling that addresses
prevention of transmission and reinfection, negotiation
on safer sex, disclosure of HIV-status and sexual dys-
function; counselling on sexual risk taking, and around
Viveca Urwitz, National Unit for HIV/STI-prevention:
New demands on counselling
X
“There are enormous challenges for prevention.”
8 HIV and Criminal Law HIV and Criminal Law 9
stigma, isolation and fear of rejection.
This review from Britain made me wonder:
is the situation in Sweden the same? Have we
downsized psychosocial support in the health
care system at the same time as a growing
number of people face a long life with psy-
chosocial challenges that might lead to crimi-
nalisation?
EMPHASIS ON HEALTH CARE IN THE LAW
The Swedish Communicable Disease Act was
changed in 2004 and is now putting a heavy
emphasis on health care, and on the treating
doctors to support their patients not to trans-
mit the virus to someone else in a new rela-
tionship. And also to support their patients to
inform their new partners. The National Board
for Health and Welfare is publishing reports
on its website now, and the reports monitor
the support given to persons who have ended
up in criminal court.
The reports show that sincere efforts have
been made, but there are enormous chal-
lenges in overcoming cultural differences and
mental health problems. It is clear that within
the healthcare system there is often a lack of
insight of the need to resource professional
counselling for diseases and illnesses that
have a behavioural relatedness. The health
care never hesitates to send a patient to an
expensive expert, for instance for treatment
for a severe rash. But do they really access
expensive experts with cultural competence,
to counsel a person from Thailand or Soma-
lia, or someone with a severe mental health
problem? Have we trained such expertise in
Sweden?
I don’t know the full situation but I know
for sure that there is room for improvement
and development.
OPENNESS NECESSARY TO IMPROVE PREVENTION
Finally I want to underscore the need to create
openness and acceptance around people with
HIV. It will in the long run counteract demoni-
zation of people who live with HIV. And it is
absolutely necessary to improve prevention.
There might be a need to change legislation,
it is not for me to say. But it is for me to say
that prevention needs to be enforced and de-
veloped and become much better, to save peo-
ple from risking prosecution. It is not easy, it
demands a lot of knowledge but most of all an
open and constructive dialogue among people
who live with HIV, NGOs, the healthcare and
the education system, who train people. But it
can be done. I hope this conference will func-
tion as a start for this dialogue in Sweden.
M
y topic today is criminal law in Sweden. In the
frst section oI the Swedish criminal code. the
penal code. there is a defnition oI crime. It`s
something that you do, or something that you omit to
do. I want to point this out: for a crime, there needs to be
some kind of action, and it must be found in an Act – the
criminal code or elsewhere.
In some countries you can have the statutory offense,
which means that it is in a written law. Then you can also
have common law offenses, which cannot be found writ-
ten in any law. But in Sweden it’s very clear: it must be in
a written law.
Then there should be a punishment. So there’s an Act
that you can fnd somewhere in a legal document. and
there is a punishment. Punishment is basically a fne or
imprisonment.
And a crime should be something that causes harm to
someone, endangers other people, or goods, or the state.
The legislation of today is not criminalizing behaviour
only to moralize.
CRIMES AND POLITICS
If you make a historical jump for some hundred years
the researcher Eva Österberg has studied sexual offenses
and saw that there was an increase in the 14
th
and 15
th

centuries. Probably the increasing infuence oI the church
can explain this. A lot of things were criminalized that
have do to with sexual relations: suddenly there were lot
of crimes about how people were behaving, for example
adultery.
But the basic idea of crime today means something that
puts people at danger or causes harm, not immoral behaviour.
The strongest way to show disapproval is to show that
something is a crime. There is nothing stronger that the
state can use. But this also means that you should be care-
ful with legislation and not criminalize unless as a very
last resort. Maybe there is already a crime description that
can be used? Or maybe it isn’t as serious so we need to
use this ultimate resort?
But politicians might be asked what they’ve done
about something, and this might be a way to show that
something has been done. So there is a demand, and we
can see that there are a lot of requests for criminalization
of various kinds.
But we know that punishment doesn’t work. It doesn’t
prevent people from acting.
THREE DIFFERENT FORMS OF INTENT
To make something a crime we need something more
than action and that is intent.
There are three different forms of intent in a judicial
sense. The frst Iorm is similar to the ordinarily used word
intent. II someone is killed you need to fnd out iI it was
intentional or not, it’s crucial. If the purpose was to kill
the other, the sentence will be for murder – an intentional
crime.
But in a legal form it is also intent if you knew what
could happen even if it wasn’t the purpose. Then the
sentence can also be for murder. You can’t say: “I only
wanted to try my new knife to check if it worked to kill a
person”...
The third form – and here comes the problem – is the
form that probably is most relevant here. It is in Swedish
“likgiltighetsuppsåt”, which does not have any English
Lena Holmqvist, Faculty of Law,
Uppsala University:
Punishment
doesn’t work
– it doesn’t prevent
people from acting
"1oday we have ìdentìñed two areas to work
with: one is that more knowledge about
HIV is needed within the legal system. The
other is that better counseling for people
living with HIV is needed. They go together.”
X
10 HIV and Criminal Law HIV and Criminal Law 11
equivalent but could be translated to “indifference intent”,
which means that you are indifferent to the consequences
of your action even if you realized there was a risk for
this to happen. It can lead you in the wrong direction
and I think that is also what sometimes has happened in
courts.
Now with this third form of intent the person who is
acting must at some time be thinking “maybe it would
happen”, know that there was a risk. If he/she is indiffer-
ent then he/she can be sentenced.
The background to this is that there have been cases
judged by the Supreme Court, like the one in 2004 when
the court got a case with a man who had had sex with a
number of people. Was there an intent to transmit the dis-
ease? This is why we got this third form of intent: intent
by indifference. For a lawyer this might be the most inter-
esting part, if there was intent or not.
But even some prosecutors say that it is too easy to get
people convicted with this form of intent. Because how is
it to be proved?
LIKELINESS OR NOT PLAYS A ROLE
If the person who acted thought it was more likely that it
would happen than not then that is enough to prove you
were indifferent. But if the person thought it was less
likely, then he/she was not indifferent and should not be
sentenced.
It should be that the person understands in some way
what he/she is doing. We are talking about people who
didn’t look around, but should have. In some sections of
the Swedish criminal code, recklessness or negligence is
enough for it to be a crime. Thus intent is not requested.
In the Communicable Disease Act, there are not crime
descriptions in it anymore. The idea is that this Act
should be about other things. So that is why we go to the
criminal code, not mentioning HIV but diseases, which
means that we can use it.
In the 90s there was a discussion on having a specifc
crime, for HIV or for certain other diseases. There were
different proposals but nothing was passed. So we don’t
have that specifc legislation and my impression is that it
is not likely we will have one.
CAUSING ILLNESS CAN BE ASSAULT
This is where we are much now in today’s discussion.
If you cause bodily injuries or harm the word ‘assault’
means the same as it normally does. But then it comes:
illness. An HIV-infection is, according to the Communi-
cable Disease act and medical terms, a disease in itself.
So it is assault if you infect someone with HIV because
that person then receives an illness.
The question of intent, or recklessness, arise if this is
something you didn’t mean to happen but knew could
happen. If there is not intent we have the recklessness.
If you have caused illness to a person and it’s not a petty
one you can be sentenced for “causing illness”.
So we have a number of cases where people are sen-
tenced for assault, meaning that they have intentionally
transmitted HIV – in-
tention now used in the
specifc legal meaning
of the word – and some
other are sentenced for
lacking intent but being
careless and thus the
crime is called “causing
illness”. But if a person
did not know there was
a risk for it to hap-
pen, and one could not
request for him/her to
have known, then it is
not a crime.
IF THERE IS NOT INFECTION
If the other person is
not infected there is
another section. If you
have consciously put
someone in a situation
where he /she is at dan-
ger, you expose some-
one else to a danger
of serious illness, the
crime is called “creating
danger to another”. That
has also been used in a
number of judgments.
It is then about people
who have not gotten the
disease but has run a
risk of getting it.
The likeliness should
play a role. The crimi-
nal law says that the
more danger it is, the
less risk you can take.
Which means that if the
illness is minor then of
course the risk taken
must be much bigger for you to be sentenced. As we
know in many cases, the risk isn’t very high. But since, if
it happens, it is a severe disease you can be sentenced for
“creating danger to another”.
Attempt to assault, or attempt to murder or manslaugh-
ter, is also criminalized. The main problem here is the
“attempt” description as such, not only for these cases but
also for others.
THE RIGHTS AND DUTIES FOR THE PROSECUTOR
The prosecutor has both the right and the obligation to
prosecute if he/she knows that there has been a crime and
can prove it. Whether the victim wants to prosecute or not
is not the issue. The prosecutor must prosecute in these
cases, the limitations are limited.
The judiciary system in Sweden is not that powerful
either. The parliament is the central power who decides,
and judges must follow its decisions.
YOU CAN’T CONSENT TO BEING INFECTED
There is a special section on consent. If you consent to
something it might not be a crime.
But you can’t consent to anything. You can’t consent
to being killed, or to severe things, like cutting your arm
– then it doesn’t apply. The preparatory work says that
these sections are not only to protect just me, but for gen-
eral life.
And there is also a debate: if you compare with some
other countries where there are special places you can go to
if you want to commit suicide. Committing suicide in Swe-
den is not a crime, and helping someone to do it is not ei-
ther. But if you kill someone with their consent it is a crime.
When it comes to the crime “creating danger to anoth-
er”, if there is not an infection but there is a risk, a judge-
ment from the Supreme court in 2004 indicates that there
you can have consent as a iustifcation and thus a crime is
not committed. This means that if you tell someone who
is then aware of the risk and agree to have unprotected
sex, and the person does not get HIV – the consent would
then mean it cannot be “creating danger to another”.
But if the other person is infected then consent is not
enough. It will be considered a crime.
The system says that whether there is an illness or not,
there are different sections for that. So that is why that
there are disadvantages with this general system: if you
want to change it you can’t do it for only HIV but for all
other cases in the same way.
"1he |eea| deñnìtìon
of intent that refers
to ‘recklessness’ have
sometimes led to problems
in courts, when it comes to
HIV-prosecutions.”
12 HIV and Criminal Law HIV and Criminal Law 13
I
am a judge and a lawyer, I’m a person who’s been in-
volved in HIV-policy formulation work for many years
– but I’m also a sexually active gay man. And in Johan-
nesburg, where I live, you sometimes encounter the fact
that in the men having sex with men-community there are
people who despite all knowledge and information just
don’t want to use condoms. There are people who wish
not to have safer sex despite being fully informed on who
you are and your HIV-status. That is a reality that I think
is more generally realised in the epidemic today, not only
amongst MSMs, and not only in Johannesburg.
And this bears directly into the ethics of our debate.
Because the model that is used in criminalization doesn’t
take into account that there are two people in a sexual en-
counter who if they have equal social power are equally
responsible in making moral decisions for themselves.
This comes from my personal knowledge. The other
personal experience I want to bring is the experience of
stigma.
I was diagnosed a very long time ago – and the fact of
survival is signifcant. There are still so many people dy-
ing in this epidemic. Last year 346,000 South Africans
died of AIDS.
So this is still an epidemic in which our policy choices
entail life or death. That’s the point I want to make.
TO CRIMINALISE NON-DISCLOSURE IS MISGUIDED
There are two sides to the phenomena. In the rest of
Europe and the United States, in what we call the First
World, there is a marked increase in prosecutions related
to mostly sexual conduct which is also signifcant and
HIV.
In Western Europe and North America it’s principally
confned to vulnerable groups like men having sex with
men, commercial sex workers and injecting drug users.
In Africa it’s a mass epidemic of heterosexually trans-
mitted viral disease and death. So because of the state
of the emergency a lot of African countries, particularly
in West and Central Africa, decided to enact legislation.
In 2005 a group of NGOs met in Chad and decided to
draught a model statute that were founded by USAID.
This was a singularly misguided internationally funded
AIDS intervention. Because the draught statute has a
clause that criminalises non-disclosure of HIV. Not just
non-disclosure of HIV but exposure to HIV.
And if you shake your heads now I must remind you:
that’s exactly the issue that you have in Sweden: Non-
disclosure and exposure. These two issues that are intro-
duced legislatively through this model law into Africa.
One must ask: why is this happening? One must also put
one`s fnger on the extremity in this: the long sentences. In
Texas a man was jailed for 35 years for assaulting a police
oIfcer with a deadly weapon he spat at the police oIfcer
and he was HIV-positive. And it’s replicating elsewhere.
THE GLOBAL EPIDEMIC IS STABILIZING
The paradox in the increase in prosecutions is that it is at
the very same time when one would have thought that we
are holding off of this sort of intervention.
One would think that from two reasons: one is that the
global epidemic is stabilized. The best news in the world
to me was when they found out a couple of years ago that
the UNAIDS fgures were overstated. There are probably
only 25 or 30 million people in Africa with HIV, not 50
million. There won’t be a mass-heterosexual epidemic in
Southeast Asia. even the Indian fgures have been over-
stated. One can only rejoice at that.
There are inner-city pockets in the West with sub-
populations of people where prevalence is increasing, but
globally there’s a stabilisation of the epidemic.
And you`d think that Ior the frst time we would no
longer think oI this as a horrifc vengeance upon the
world!
THE TURNOVER OF TREATMENT
The second reason why it’s puzzling is the situation of
treatment. I started on treatment nearly 12 years ago, at
the end of 1997. I’m extremely well and it’s wonderful to
be here, 12 years after I thought I was going to die from
AIDS.
So the reality of treatment is mainly astonishing. In Jo-
hannesburg now people – rich and poor, gay and straight,
white and black, male and female – are recovering. And
one would think this would have fed back into decreased
intensity of pursuit, persecution, prosecution, of people
living with HIV.
And yet it’s not happening. The opposite is happening.
How do we understand this paradox?
STIGMA KEEPS KILLING
The only answer I have is stigma. Still.
It`s been the defning Ieature oI the political and social
reaction to AIDS from May 1981 when the CDC reports
oI mortality and its frst case oI what later became known
as AIDS. It`s been the defning Ieature oI the Reagan ad-
ministration’s reaction and those terrible years of silence
when Reagan wouldn’t mention the word AIDS until
1987 – when almost half a million gay men had died in
his own country! His silence was seen as a terrible sen-
tence of death on these men.
Stigma has formed the response in Africa. It lay behind
president Mbeki’s denialism in my country. He actually
took offense by the idea that there was a sexually trans-
mitted disease that had its only massheterosexual demo-
graphic in Africa. He said it was “an insult” to say that
AIDS originated in Africa. Why would it be an insult?
Unless you regard it as unacceptable to have a sexually
transmitted disease.
His denial re-stigmatized the whole disease in Africa,
just at the time when we thought we were winning the
battle against stigma.
And I have only that answer. I am sorry to not be more
inventive, because why are we always falling back on
stigma? Are we self-victmising? Tell me if we do that
because I don’t have a better answer.
It is stigma that lies behind these criminal provisions.
Like Norway’s article 155 which is called the HIV-provi-
sion even though it’s been on the statute book since 1902
in Norway and is a neutral provision – but has only ever
been used for HIV! Why?
Why isn’t it used for Chlamydia? Why are these provi-
sions used so exceptionally in relation with HIV?
The other factor pointing at stigma is not just the select
of prosecution. Prosecutorial focus, indicating some no-
tion of blame and condemnation, lies behind it.
Another factor is the sheer length of sentences.
THE PREDATOR MODEL
That itself is based on a model of HIV-transmission
which informs the stigmatized responses to HIV: it’s
the predator model. When you think there is someone
out there. It’s normally a he and he is out there and he is
spreading the epidemic.
Well we know it doesn’t happen that way. HIV is over-
whelmingly spread from one person to another, where
neither knows that one of them has HIV and that the other
is at risk of transmitting it. We know that overwhelmingly
the instances where it is spread by someone who knows
he has HIV and is recklessly or deliberately passing it on,
constitute a very small minority.
Why have we not got that message across? And what
is there for us to do about it? It’s the biggest part of our
challenge.
I’ve got a program of action which I want you to en-
gage with and accept or reject – or improve.
THE ARGUMENTS
We’ve got to make the arguments against criminalisation.
We’ve got to make them effectively, passionately and in
the right fora.
XIt’s ineffective as a public health strategy. Both for
prevention and probably even reducing transmission.
It’s misdirected and misconceived strategy.
YIt replaces harm reduction and gender impact. In
Africa, the role of the predator is often reversed. In a
heterosexual epidemic women have traditionally in
the hierarchically male imposed ego been seen as the
receptors oI disease. In AIrica the frst prosecution ever
was of a woman – a woman in Zimbabwe who was
prosecuted in 2007, kept in jail for nine months and
then given a fve year suspended sentence Ior spread-
ing HIV, even though there was no transmission and
her lover drew back his charges. And of course that
was predictable: most people diagnosed with HIV in
Edwin Cameron, the Constitutional Court, South Africa:
We have the arguments
“Sweden supports international governance, it supports
ìnternatìona| oreanìsatìons. but ìt has faì|ed to reßect
over its domestic law and practice and what UNAIDS has
said – which is that you should only criminalise when
someone transmits with intent. I think that Sweden’s
domestic practice falls behind international ideas.”
X
14 HIV and Criminal Law HIV and Criminal Law 15
Africa are women, most people bearing the burden of
HIV are women. It`s a highly gender specifc burden
that African women bear. If we want to protect women
in Africa we are not going to do it through a criminal
statute.
ZIt misplaces the moral onus of selfprotection. Here
we`ve got to walk a very fne line. We`ve got to be
clear about our own ethical position: that the person
with HIV should behave ethically by measuring full
disclosure.
But it’s an ethical position overlain by stigma and by
disempowerment. How can you tell a woman that she
must disclose when she risks being beaten up by her
male partner – who has probably passed it on to her?
How can you place the onus solely on that person?
We’ve got to be clear about the complexities of the
ethical position.
And that’s when criminalisation gets completely
wrong. Criminal law sends out the complete wrong
message and complicates the public health message of
selfprotection, at exactly the time when people at the
age of liberated sex should know that there is a risk!
Not only of HIV.
[Criminalisation fuels stigma. This needs to be un-
derscored outside this room. It fuels the conception of
the predator model of HIV-transmission. It fuels the
conception of HIV as a blameworthy condition. More
blameworthy than other conditions, which are not sex-
ually transmitted. It fuels the condemnation and moral-
ism that surround HIV.
We don’t criminalise lying or adultery or many other
Iorms oI conduct that we fnd immoral and unethical.
which lie far beyond the reach of criminal law – and
quite rightly so. Why have we brought HIV in here?
We brought it in because of the moralism.
Your job as a lawyer and a judge is – to judge. And
to judge is to condemn in the Roman law. The judg-
ment is called the “condemnatia”. The very act of judg-
ing means coming down on one side: the side of true
or false, of right and wrong. By bringing the criminal
law into there we fuel stigma. And stigma is lying at
the very centre oI our diIfculty in grappling with eIIec-
tively dealing with HIV for the past three decades.
\Criminalisation disincentives testing. There’s no
clear evidence of this, but I believe this very passion-
ately. I believe the evidence will emerge.
The key to dealing with the epidemic is treatment
– the key to this is testing. To see testing and ascertain-
ment of your status, whether negative or positive, as a
liIe aIfrming response to a deathly epidemic. Crimi-
nalisation goes right across at this and says: rather
don’t be tested.
We must take those arguments out, take them with evi-
dence and take them with passion.
DEFINING OUR TURF
A part oI my program oI action I call 'defning your turI¨.
With “we” I mean everyone: in public health, in govern-
ment, in the law that is concerned with a just and rational
response to this epidemic. We must determine what the
turf is that we want to defend. Also what is the turf we
are not going to defend, and how are we going to defend
encroachments on it.
I agree with the stands of UNAIDS: if there is deliber-
ate intent and there is transmission, I believe that person
deserves prosecution.
But we’ve got to ensure that the criminal law is applied
neutrally. Once we have defned our turI. we can with
moral stature and ethical clarity stand up in any public
forum and say: we are defending what is right, not what
is wrong.
Do we demand exceptional treatment for HIV? My an-
swer is no. No more special treatment than for Chlamydia
or Hepathitis C or for any other sexually transmittable
disease. We want no better – but also we want no worse.
II we apply that standard I think we can defne our turI
correctly.
THE COUNTER ATTACK
Our allies in this epidemic from May 1981 have been
public health and science – we have nothing to fear from
public health and science, only to gain.
The science that the Supreme Court of Holland ac-
cepted is the science that should be argued in the courts
of Sweden – it’s the science that should determine what
we are now talking about.
We must counter attack with public health and science.
We must take it to judges, and we must also break the
silence. We must talk about the empowerment of people
with HIV. There’s entered in the Western world into the
feld oI HIV. HIV-services and HIV-organisations. a sort
of serenity and complacency. It’s the age of treatment.
HIV is no longer so threatening. Someone spoke to me
about the services delivered by his organisation, and he
said: They now want to be left alone.
But the time to be left alone has not yet come. There
are still too many challenges. The challenges in Africa
are the challenges of life and death. The challenges of
criminalisation on my continent is a struggle of life and
death.
But it is also so in Sweden. The urgency of the issues
may be slightly less in Sweden – but we are one world.
We are one set of moral and ethical choices and we can-
not afford complacency. The stigma created in a Stock-
holm court room is a stigma that returns to brand every
person living with HIV.
So the fght is one that remains Ior us. We have to fght
for treatment, for voices, against stigma – we have to
fght Ior the moral ground. The moral high ground. And
we have to fght against criminalisation. That is taking the
battle forward.
“Criminalisation fuels stigma. This needs to be
underscored outside this room. It fuels the conception
of the predator model of HIV transmission.
It fuels the conception of HIV as a blameworthy
condition. More blameworthy than other
conditions, which are not sexually transmitted.
It fuels the condemnation and moralism that surround
HIV.”
16 HIV and Criminal Law HIV and Criminal Law 17
Lena Holmqvist:
We must spread information to the
right group. There are things to be
learnt, from example South Africa
and especially for NGOs. We are
sending out information and inform-
ing – but to people who already
know. The people we should address
are decision makers, parliamentar-
ians, and lawyers – they don’t know
enough.
There is defnitely a need Ior knowledge among law-
yers. But the prosecutors are also people, often over-
worked. If they get this latest information about infec-
tiousness I think many would be happy to see that they
might not have to prosecute. So it is a very good thing to
address them on this.
So, yes, in a way they are the enemy but I don’t think
they should be addressed as that. They should be given
the information necessary because they won’t have time
to go look for it.
Åsa Cronberg, HIV-Sweden:
The racial issue is very strong. For
example: one newly arrived migrant
woman in Sweden claimed to be
raped by two men last year. She was
HIV-positive but hadn’t told her rap-
ists. The court didn’t believe her rape
story and she was convicted for not
having told about her condition. The
men got free.
It was a case of triple discrimination: she is black, she
is a woman, and she is HIV-positive.
We have to be aware of the racistic dimensions in this.
Black men get the longest sentences, not just for HIV. We
have a lot of documentation to support this.
Peter Gröön, Stockholm Coun-
ty Council:
I have done a study with professor
Madeleine Leijonhuvud on these
16 cases after 2004 when we had
that Supreme Court conviction. We
thought it seemed too many cases
were coming up, so we studied them.
And 10 of these 16 were going to
the Court of Appeal. What we could
see was that the District Courts and Courts of Appeal
don’t understand the intent of the Supreme Court of 2004.
There should be more cases with recklessness instead of
intent. The difference in sentence length and in damage
size is considerable. We also saw that people from abroad
– 10 of 16 – get longer sentences.
Moono Nyambe, GNP+:
This morning I wanted to ask – if
you look at our scan indeed there are
few cases out of the total. So why
do we focus on this issue? Because
criminalisation institutionalizes that
stigma. It makes it okay for other
people to stigmatize us. We are right
to be outraged by some of these cas-
es. Many of the things done are done
predominantly because the person is HIV-positive.
Inger-Lise Hognerud, HIV-
Norway:
Norway is reviewing the penal code
now. It has been a struggle to change
section 155 and we are not far from
the goal. But we want to share with
you three experiences during the
process to get there:
1) Politicians are also just ordi-
nary people. They have knowledge
like everyone else on the streets, so we had to start from
the beginning and give very basic information.
2) The complexity of living with HIV. There are poli-
tics and legal issues. We met among politicians arguments
that are partly legal, partly politics, partly health, and as a
lawyer myself I got mixed up. We had to single out what
was what.
3) The help Irom others: The doctors in the feld. HR
experts, other organizations – all supported us and that
helped. So we need help from others. Talk with people,
build alliances!
Thandi Haruperi, EATG:
It is right to say that the immigrant
communities are weak, from a so-
cial perspective. But I also want to
say the weaknesses are driven by a
political system that disempowers
groups, especially immigrants. A lot
of immigrants are presenting late and
part of the reason is that if people are
suffering in terms of bad housing,
work and those things, health comes second.
Staffan Hallin, National unit
for HIV/STI-prevention:
The situation is different from 30
years ago. Many of us live in the
past. In prevention we are still warn-
ing against a deadly disease and at
the same time we say you can live a
good life as an HIV-positive. So pre-
vention speaks with double tounges.
Andreas Berglöf:
Our position is that there should only
be prosecution if there is an intent
and if there is transmission. Besides
that: counseling and support. That’s
our answer.
Even though we have worked
with this issue for many years – this
is just the end of the beginning. So
in one sense we haven’t done our
homework but we will during the coming years. Most
important is to put the topic on the agenda.

Edwin Cameron:
We need to reset the frame. Because
now it is the frame of blame. There
is a role for some prosecutions, no
one should deny that. But within the
proper framing of the issues and the
framing of the public health issues
and the framing from where the stig-
ma is born I think that prosecutions
should play a lesser role.
Viveca Urwitz:
It is mainly a topic for the judicial
system and it is not being discussed
there. It is the usual public health
problem: you have to work in differ-
ent sectors. You have to be strategic
to strange small aspects of many sec-
tors. So far we have failed in reach-
ing the legal system.
Edwin Cameron:
About the discussion about exceptionalism, there are a
lot of aspects. Sometimes we self-victimize by asking for
special treatment and I don’t want that. There is a huge
scope for activism to demand treatment but not demand
special treatment. That’s the debate.
It’s the same paradox as with racism. You can only
fght racism by drawing attention to race but your obiec-
tive at the end is that you don’t want special attention to
race. And we have to see our object: that we want a re-
sponse to stigma and discrimination out.
Summary of the debate:
“This is the end of the beginning”
In the panel, left to right: Viveca Urwitz, Edwin Cameron, Lena Holmqvist and Andreas Berglöf.
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18 HIV and Criminal Law HIV and Criminal Law 19
When Andreas mentions “positive prevention” that’s a
step further from where we are now. With so many people
now living with HIV we have a totally different situation
from just 10 years ago. And we haven’t adjusted to it –
neither prevention professionals nor people living with
HIV. Before people just died and now they keep living,
with the infection. We all have to adjust to this new situa-
tion and think in new ways.
Kimmo Karsikas, HIV-Finland:
I am unfortunately joining my country into the sad line of
Nordic countries where the rights of HIV-positive people
are being stumbled upon. It’s mainly people who are al-
ready working within the HIV-feld who act. Many oI us
are HIV-positive and we’ve been working with the issue
for 15-20 years. I think we have done a lot. And we are
still doing a lot.
But again I can hear today that we should do more.
Partly I can agree, but I think when it comes to criminali-
sation there is only so much we can do. We cannot make
the decisions. It is the government, the politicians and
judges who should be here with us today.
Lucy Stackpool-Moore, IPPF:
There is this disconnect between some fairly progressive
and human rights international work that is inclusive and
empowering, but it seems disconnected from the domes-
tic and almost repressive situation with the criminal law.
For example what goes on in Sweden but also in other
countries. What do you in the panel think about this dis-
connect?
Viveca Urwitz:
That is a diIfcult question. But I think the more concrete
and practical the work the harder it is to implement. You
will encounter people who have other knowledge and
other agendas. Local politicians often don’t have enough
knowledge and there are so many other agendas that in-
fuence.
In the international sphere you don’t have to deal with
the implementation. It is easier to be progressive then,
but in your own country, where you implement the poli-
cies on the ground, you have to involve many people and
tackle all the prejudice and discrimination, and all the
people who think that this is a marginal issue.
I have worked with HIV since 1986, and things do
change, often for the better. But it takes time. If UNAIDS
passes a declaration it`s a frst step. It has to be taken
through layers and layers of international and national
processes before it hits the ground.
You need to be systematic and have a lot of patience. I
would want all of us to go back and work to do the neces-
sary changes.
Left to right:
Edwin Cameron,
Mohamed Farah,
HIV-Sweden, and
Viveca Urwitz
Thandi Haruperi,
EATG
Edwin Cameron and Lennart Hjelmåker, Swedish Ministry for Foreign Affairs
Lennart Ekdal
20 HIV and Criminal Law
Anders Blaxhult, Venhälsan
(Gay Men’s Health Clinic),
Stockholm:
– The main problem isn’t the Com-
municable Disease Act but the app-
lication of the criminal code. The
court is to judge both the degree of
danger and risk for transmission ac-
cording to the criminal code, but the
situation has changed a lot during
the recent years. Through eIfcient treatment the risk Ior
transmission is very low in many cases. Many of those
who judge seem not to have updated knowledge. They
think that HIV automatically transmits when having sex
and that if infected you die soon afterwards. Above all
maybe we need some good defense lawyers who can
speak for those who are prosecuted.
Åsa Regnér, RFSU:
– It seems time for us to look into this
thoroughly. The criminalisation as-
pect of HIV is not yet much discussed
within RFSU, but besides prevention
we have discussed the issue of stigma
and the Communicable Disease Act a
lot. Now our congress has asked us to
look also at criminalisation to be able
to arrive at a thought-through decision about policy.

Ulrika Westerlund, RFSL:
– Our organization has focused
more on the Communicable Disease
Act and not so much on the conse-
quences of the criminal code yet.
But now our board have decided that
RFSL will push for Sweden to adopt
the UNAIDS policy, which is that it
shall continue to be prosecutable if
someone with HIV deliberately tries
to transmit HIV and also succeeds. But the Swedish law
is much harder than that. We sentence people even if they
haven’t infected anybody.
Lucy Stackpool-Moore, Inter-
national Planned Parenthood
Federation:
– In IPPF we see it as a fundamental
Human Rights issue. We think that
criminalisation of HIV is against hu-
man rights principles and undermin-
ing public health efforts. So we are
very much against it.
Edwin J Bernard, UK:
– Sweden tops the global league ta-
ble of the percentage of people living
with HIV that have been prosecuted
for non-disclosure, exposure or trans-
mission. In addition to these people,
close to 100 more have been forcibly
isolated by the State for up to seven
years. Given the tiny number of peo-
ple with HIV in Sweden, this means
that Sweden’s government, legal and public health system
have interfered in the lives of more HIV-positive people
per capita than any other country.
This sends a very powerful message to the rest of the
world that Sweden does not respect the human rights
of people living with HIV, something that the European
Court of Human Rights noted in their 2005 decision. It is
not just the criminal law that must change in Sweden, but
society’s view of HIV-positive people.
Dominik Bachman, Swiss AIDS
Federation:
– One thing that is special about the
Swedish law compared to our legal
system is this duty to disclose, that
doesn’t exist in Switzerland. Either
you have to have protected sex or
you have to disclose. The other
person can consent to bodily harm.
What isn’t logical in Swedish law
is that you can consent to the risk but only as long as it
doesn’t happen. That’s not logical. Either I consent to a
risk that remains a risk or I don’t consent. It is contradic-
tory.
More on the conference at
www.hiv-sverige.se
Voices at the conference “HIV and criminal law”
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