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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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An Opening for Change

By late 2008, the Swiss statement was beginning to find its way into criminal proceedings -- and not by accident. Pärli said there was a concerted effort to translate the statement from its scientific source to the legal world.

"The legal world is sometimes like an autonomous planetary system or something," Pärli said. "There was a need to bring this information to lawyers and to judges and to the courts. But finally, it had an effect."

Indeed, the Swiss statement came out at the beginning of 2008. By the end of that year, one of the statement's primary authors, Hirschel, had testified that Mr. S couldn't have transmitted the virus because his viral load had been undetectable since at least the beginning of 2008. This directly contradicted the statement of a medical examiner during the first trial, that "a risk of contamination remained in a context of undetectable viremia."

Prosecutor Bertossa dropped charges against Mr. S during the appeal of his conviction. That was followed the next year by another acquittal based on the same grounds, according to a study presented at the European AIDS Conference in 2013.

Collectively, these decisions became known as the Geneva judgments, and they were just as much of a watershed in Switzerland as the Swiss statement.

But for Ruggia, who was still watching his amendment move at a glacial pace through the Swiss legislative process, neither the Swiss statement nor the Geneva judgments were enough.

"Article 231 was still there," he said. "Even in the case of a judgment that goes up to the federal court, there was no guarantee that the Geneva judgments would be heeded. Usually judges are not as open and progressive."

Again, lack of the legal concept of binding precedent meant that judges in other cantons were free to make their own judgments.

Related: HIV Undetectable = Untransmittable (U=U) Fact Sheet


Arguing Against "Virulent" Laws

So when Pärli's report came out the following year, in 2009, it didn't just describe the problem; it also argued that, for many reasons, the law needed to change.

For one thing, it argued that even without the Swiss statement, consent to taking a risk ought to be a defense against prosecution under Article 231 -- and protection from HIV is both party's responsibility. Think of it as an "it takes two to tango" doctrine, a doctrine that conformed with the new Swiss AIDS policy approach to public health.

If both people are culpable, the English-language fact-sheet stated, then it stands to reason that either both should be prosecuted, or neither should.

"If one does not wish to draw this conclusion," it states, "a restriction or reversal of the application of Article 231 of the Swiss Penal Code would be worth investigating de lege ferenda [in future law]."

But the Swiss statement does exist, he went on to write, making the burden of consent and disclosure "even more virulent."

"Given that punishment on the grounds of an attempted crime always requires that the accused acts willfully, in cases of unprotected sexual intercourse where the HIV-infected person complies with [the Swiss statement], conviction on the grounds of attempted bodily harm is ruled out," the fact sheet states.

These issues, the report said, "shows the necessity to review Swiss Supreme Court practice."

But getting rid of the disclosure and consent rule is politically unfeasible, Boffi said. This is because Swiss law applies the same standards of informed consent to HIV disclosure that govern informed consent in the law in general, such as before surgery. So "it's difficult to find a way to mitigate that without weakening other forms of informed consent that we want to keep," Boffi said.

There is one way to avoid disclosure, though: Swiss law holds that practicing accepted rules of safer sex is a defense against prosecution.

"As far as [the Article 231] was concerned, our Supreme Court decided that when protection was used, no disclosure was necessary," said Boffi. "It didn't say a condom needed to be used, only that if the person abided by the rules of safer sex, that person was free of the obligation to disclose."

So Boffi and others saw an opening there: If treatment was considered protective, it could influence the law and legislators.

"Our argument was that it's very simple: It's very important to take the HIV test, because now there's treatment -- testing is an opportunity for treatment -- so every hurdle in the way of letting them test is not cost effective for public health," Pärli said. "As long as the criminal law was persecuting individuals who are HIV positive and took some risks, there was no incentive to take the test -- especially for those who are acting not all the time in safe ways. It's very important to reach those people, and the fact that they were afraid after being tested that they would be criminalized, that was an important point."

And with what the Swiss statement revealed about how effective treatment prevents people who live with HIV from transmitting the virus, even if they are not using condoms, overcoming that barrier to testing and treatment is even more important.

"The more sick one is, the more risk they have to transmit the virus," Päril added. So the law just didn't make sense. "One of the important lessons we learned was that it's important to act with patients and not against them."

A Switch and a Scramble

But just as the introduction of the the epidemiology law overhaul bill went to parliament in 2010, everything changed again.

"Here I was, I was very happy, I was not screaming. I was keeping a low profile because the article [amendment] was there and nice and fine," Ruggia said, his words speeding up and becoming more clipped. "And then two days before [it was introduced to Parliament] ... they changed the article."

It turned out that someone from the Department of Justice, at the last minute, had noticed the article and pressured officials to remove it from the bill. They did, and Ruggia's bosses raised no objection.

Suddenly, Ruggia went from hopeful to both furious and scared: anger at his bosses for not fighting the change, he said, and anger that the change went against the expressed comments of organizations that responded to the proposal (comments he had encouraged); and fear because "the odds change in parliament. You don't know what's going to happen."

"I told myself, we cannot leave it like this," he said. "Working with the press is always a risk. Working with politicians is always a risk. If you want to achieve something, you have to try to take some risks."

So despite the fact that he was having to do exactly what he didn't want to do, and despite the fact that he wasn't sure he even could do what needed to be done, Ruggia started talking to connections in parliament to try to undo the change.

As in the U.S., the process of bill approval is long, and starts in a committee -- in this case, in the national council commission on health of the lower house of Switzerland's parliament. There would be a hearing on the bill.

Ruggia decided the commission needed to be at that hearing, he said. But they could not just invite themselves.

"I needed someone from the committee to invite us," he said. "I knew someone in the committee and I asked him, 'You should get me an invitation.'"

First hurdle cleared: The invitation was issued.

But Ruggia didn't want to be the one up there talking publicly. "I prefer to get people better than me to speak in public," he said.

He managed to line up a few lawyers and policy analysts. Pärli was out of the country, so he asked other attorneys to speak on the law and public health.

That's the next hurdle sorted, he thought.

Then he primed the pump: As the hearing approached in 2011, he asked Vernazza to speak to a newspaper reporter about the Swiss statement and the scientific argument for changing the law. They needed, he said, "an article in the press supporting the change."

Next, he studied the committee members again and tried to figure out who on the committee would be his biggest challenges. Once again, Ruggia's goal was to draw as little attention to the change as possible, for fear of attracting vocal opposition. So he looked at the committee members in the far right party, and discovered that someone in Ruggia's network knew one of the conservative committee members pretty well.

It was a stroke of luck, something Ruggia could never have expected, he said. So that member of Ruggia's network met privately with the committee member and, in Ruggia's words, "had a discussion before the hearing." Ruggia said this wasn't to lobby, but to educate. He declined to name the member of Parliament or the member of his network who met.

And all along organizations like UNAIDS and others were issuing reports and studying HIV criminalization laws around the world, to keep a spotlight on the issue.

Then came October and the day of the hearing. The article came out. Experts testified. The Swiss statement was presented into evidence as a statement from an official group of the parliament.

And the far right party members, he said, stayed mum.

"We didn't get any opposition," he said.

The revised amendment still required people to inform their partners of their HIV status, regardless of viral load. And while it made penalties more severe for people who purposefully transmitted HIV, it still allowed courts to punish people who passed on the virus unintentionally, according to a 2011 report from the newspaper Neue Zürcher Zeitung.

It wasn't the victory that Ruggia wanted. But, he said, it was better than leaving the article as it was, with no changes at all.

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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
More on HIV Criminalization

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