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Held Harmless

Science Guided Switzerland Away From Prosecuting People Living With HIV for Theoretically Exposing Their Partners To The Virus. Could It Happen Here, Too?

February 22, 2018

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A Public Policy Approach

Changing Swiss HIV criminalization laws would not be easy. For one thing, the laws used to prosecute people living with HIV are general and apply to any form of assault or transmission of human disease. For another, the Swiss don't follow the legal concept of binding precedent, said Sascha Moore Boffi, a jurist with the Swiss HIV organization Groupe sida Genève. So what happens in Geneva doesn't necessarily change a later decision in Zurich or Obwalden. Each case, he said, is decided on an individual basis.

For another thing, there's no national database of every decision made in every canton. To find out what the courts were doing, Pärli called all 23 of the cantonal courts to get their information.

The results were, perhaps, not a complete picture. Only 62 of 94 courts responded.

But what they told Pärli was significant: Cases against people living with HIV had been going up across the country, from two cases before 1994 to nine cases between 2005 and 2009, with 39 people prosecuted since 1990. Twenty six of those were convicted. And half of those were despite the fact that no one acquired HIV.

Most cases involved new couples having sex without one partner knowing the other's HIV status or where the person living with HIV had lied about their status. Three people were prosecuted and convicted for having consensual sexual contact with a partner who knew their status and consented to taking the risk.

People who were convicted spent an average of 18 months to two years behind bars, but one case resulted in a three year sentence -- that one included a conviction for coercion and assault, according to Pärli's report.

One person was convicted only of having presented a risk to public health -- meaning he wasn't convicted of having caused any actual harm -- and the court ordered a suspended sentence and an obligation not only to disclose HIV status to partners, but also to register every sexual contact with the state.

This put Switzerland's HIV criminalization rates amongst the highest in Europe, said Boffi.


Related: What's the Future of HIV Criminalization Activism? An Interview With Trevor Hoppe


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The Behind-the-Scenes Guy

Luciano Ruggia would prefer you not know his name. He's not shy -- in fact, with his frank manner and expressive hand motions, he'd be more aptly described as gregarious. But he prefers to do his work out of the spotlight.

"That's where I can achieve more," he said. "You really have to keep a low profile if you're inside an administration."

That's where Ruggia was in 2006, as EKAF's scientific secretary, a position within the Federal Office of Public Health. It was part of his job, he said, to present the commission with issues it might tackle. To that end, he read reports from Pärli and attorney Fridolin Beglinger, and discrimination reports by Boffi's group and others, and listened to the opinions of activists like EKAF member David Haerry.

That's how he learned about the impact of Article 231, and the epidemiology law, Article 122, on people living with HIV. Ruggia said he considered the law itself ethically wrong and functionally ineffective, but he knew just repealing a criminal statute was a non-starter in a parliament he said was composed primarily of lawyers.

"It's very bad press to raise" repeal of any criminal statute, he said. "If you look, in every country, the criminal code book only gets bigger."

And EKAF could recommend a change, he said, but that's where its power ended.

They needed to find a way to link the law on epidemiology to the criminal code. And it was a stretch, he said.

So nearly two years before the Swiss statement codified U=U's forbearer into Swiss medical practice, Ruggia did something he wasn't sure would work. The administration was considering updating the entire epidemiology law, to bring it current from its 1970s drafting, and to address new epidemics, including SARS and H1N1.

What if he could slip into this update a change to the language in Article 231, one that stated people could only be prosecuted if there was actual transmission and if there was malicious intent on the part of the person living with HIV? And what if he could convince others in the administration that this was, after all, a small, technical change not worthy of note?

So he wrote up the amendment and slipped it into the end of the draft bill circulating around the capitol. It went unnoticed in its first year. It seemed to be considered just another little amendment necessary to bring other laws in compliance with the new rules, Ruggia said.

"It was seemingly a little bit harmless," Ruggia said with a subtle shrug and a twist of the wrist meant to dismiss it.

By December 2007, the change made it into the version of the bill that was released for public comment.

Ruggia was relieved.

And then he took action to try to ensure it stay in there: He drafted up a letter of support for the amendment from EKAF. He called Boffi and his counterparts in the French- and Italian-speaking parts of the country. He asked them to write lettersof support for the change, to show its broad support.

Their letters of support were added to the public record. By the time the comment period ended six months later, Ruggia's amendment went untouched.

"I remember saying, 'Let's try this. This could work,'" Ruggia said.


The Doctor Turned Activist

Pietro Vernazza, M.D.

Pietro Vernazza, M.D., at his induction into the Love Superhero Hall of Gratitude for work on safer conception options for HIV affected couples (Credit: LoveYou2.org)

Then something else that Ruggia had been working on behind the scenes came out publicly: a statement in the Bulletin of Swiss Medicine saying that people who have had a suppressed viral load for at least six months, who have no other sexually transmitted infections (STIs), and who are monogamous need not use condoms because they can't transmit the virus.

This became known as the Swiss statement, a scientific policy intended to allow Swiss providers to talk openly with their patients about their options for conception and other activities, but which resonated around the scientific world, where it was largely lambasted.

For Dr. Pietro Vernazza, M.D., the lead author of the statement, it wasn't purely scientific. He said he was thinking of HIV modernization while he, Bernard Hirschel, Enos Bernasconi and Markus Flepp drafted the statement, too.

But Vernazza hadn't heard about it from his own patients in his clinic at a provincial St. Gallen, Switzerland, hospital. There, Vernazza was working with people living with HIV who were forgoing having a family with their HIV-negative partners out of fear of transmitting the virus -- a fear, he said, that was not backed up by any case reports of people on effective treatment transmitting HIV. This supported his own clinical experience, and the experience of the Swiss HIV cohort at large.

By 2007, Vernazza had been on the EKAF for eight years and was now serving as its chair. He had the power, but it took Pärli's advocacy for Vernazza to understand the effect of the law on his patients.

"[Pärli taught us] that not only did we have the highest number of convictions within Europe but also that these convictions were not justified," Vernazza said. And just like the pointless delay or abdication of children, HIV criminalization laws were pointless, too, he said.

"To me, this is a situation where you can't just say, 'OK I'm not involved in politics,'" Vernazza said. "It motivated me to do something against it if I could. And I was in a position with this commission that I was influential enough to use this influence [for my patients]."

He paused and added, "I would consider it my duty in such a commission to fight against the incorrect application of the law."

Indeed, the conclusion of the Swiss statement makes this specific: "Courts will have to consider [this statement] when assessing the reprehensible nature of HIV infection. From the point of view of the [EKAF], unprotected sexual contact between an HIV-positive person with no other STIs and on effective [antiretroviral treatment], and an HIV-negative person does not meet the criteria for an attempt to spread an illness. It is not dangerous in the sense of Art. 231 of the Swiss Penal Code, nor to those of an attempted serious bodily injury according to Art. 122."

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Related Stories

HIV Undetectable Does Equal Uninfectious: The Swiss Statement and the Vindication of Pietro Vernazza
What's the Future of HIV Criminalization Activism? An Interview With Trevor Hoppe
HIV Undetectable = Untransmittable (U=U) Fact Sheet
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