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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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Change From the Left

As the bill moved from committee to the Parliament at large, it was a touchy time, said Pärli.

On the one hand, parliament was overhauling its whole epidemiology law -- not just its approach to HIV. And most of the discussion was about whether and what vaccines should be required for children to attend school.

"This was an advantage," said Pärli, "because there was not a huge debate about this particular issue. [HIV] wasn't the focus."

On the other hand, they feared the day that HIV did become the focus, and what would happen.

"We were a bit afraid -- what will happen when one day the Parliament is debating the issue of HIV/AIDS and what protections should be enacted into law, and then to argue it's against the public health if the transmission of HIV is criminalized," said Pärli. "This is quite crucial -- how to convince ordinary members of parliament who are not specialists in public health."

And how to do it, he said, in a rational way when, as it comes to HIV, "the questions are not discussed in a rational manner."

So Pärli, Ruggia and their networks tried to keep the issue out of the limelight, avoiding reporters, and praying that a big splashy case of someone intentionally transmitting HIV wouldn't take over the news and the consciousness of members of Parliament. When occasionally it did bubble to the surface in a positive way, Ruggia said he would send the article to his contacts in Parliament.

"You don't just stop," he said. "You send an email here or there."

Related: HIV Criminalization Coverage on TheBody


Meanwhile, Meyer was getting more and more irritated with the law as it was amended.

"I was really upset with them [on EKAF]," she said. "It wasn't just about the law for me. My big hope was to change the stigma, end the stigma."

She was convinced that EKAF, Ruggia and the rest of them had it backward: prevent discrimination, and then everything will get easier. For her, it wasn't really about the science.

"Because then it's just a virus, and you can have information and testing and treatment," she said.

So she kept pushing, talking to her contacts in Parliament as Ruggia talked to his, advocating for a better change to the law.

"I was so glad there was one man in Parliament who really understood what was needed," she said.

That man was Alec von Graffenried, representative of Switzerland's Berne region at the lower chamber of parliament, known as The National Council, at the time of the law's passage. He was a member of the Green Party and on the National Council's Legal Affairs Committee. Meyer said she'd spoken with him in the past, though she didn't speak directly with him about this bill. Meyer also said she knew people who knew him. And she was constantly talking to them about how wrong the law was to be there at all.

Similarly, Ruggia said he hadn't approached von Graffenried, either. But somehow, von Graffenried found articles on the law. He told the UN Development Programme and the Inter-Parliamentary Union in a report issued later, that he simply felt it was a good opportunity to bring the law in line with the science of HIV.

So in 2013, when the bill finally made it to the floor of The National Council, von Graffenried presented a last-minute amendment that said that the law should only prosecute the rare case where someone with HIV maliciously spreads the virus -- rather than people who, he said, were engaged in "normal sexual relationships."

It was a proposal that shocked Meyer, Ruggia -- everyone.

"I was not expecting that at all," Ruggia said. And even more surprising, he said, von Graffenried's proposal was a well formulated one.

"He was taking the law in the draft and saying, 'We can formulate this better,'" he said. "I think he's the only one who noticed Article 231 in the bill at all."

For his part, von Graffenried has said the new language just made more sense.

"We can still prosecute for malicious, intentional transmission of HIV," he's quoted as saying in the UN report. "But I expect those cases will be very rare. What has changed is that now people living with HIV -- which these days is a manageable condition -- will be able to go about their private relations without the interference of the law."

All the evidence, he said, suggests that "this is a better approach for public health."

His amendment passed 116 to 40.

It would take another three years for the law to go into effect: the public still had to vote on the new epidemics law, which included the amended Article 231. Anti-vaccine advocates put a proposition on the ballot to challenge the vote. , based on a proposition put forward by what Ruggia described as an anti-vaccine. The vote failed.

The report concludes that, as a member of the Justice Committee, von Graffenried was well placed to make this argument. This should be a lesson to advocates, the report states.

"Campaigners and parliamentarians need to ensure that all the relevant departments are lobbied when working on such changes," the report states.

For Boffi, the result shows that long-term advocacy is worth it. "What can be said is that the years and years of vocal opposition and lobbying and advocacy and information -- and especially information based on concrete evidence -- did have an effect in the end. We did have the majority of parliament say this wasn't an issue. It does confirm that advocacy, even though in the short term it doesn't succeed, in the long term it can create the necessary conditions that lay the groundwork and then benefit from the fruits.

Still, there was more than a little luck involved.

"It could have gone the other way," he said. "We were very fortunate to have that one member of parliament. ... I don't believe he ever did anything related [to] HIV before that."

The Living Legacy of Stimga

Groupe sida Genève's Boffi joined the organization long after the groundwork had been laid for Article 231's modernization. He came on in 2010, after Ruggia's draft amendment to the law, after the Swiss statement, after the Geneva judgments.

He remembers clearly his colleagues coming home from the International AIDS Society conference in Vienna that year, and how so much of the discussion was on the Swiss statement and how dangerous it might be.

Today, a decade later, Boffi said that the impact of both the law change and the Swiss statement has been immense.

"The relief [among people living with HIV] was palpable," he said. "People were saying, 'Oh this is wonderful. I can seriously consider having sex again, and not be panicked or anguished that I'm putting my partner at risk.'"

But even in Switzerland, the stigma isn't gone. There's less structural stigma there, he said. But it's still around. He spends a chunk of his time working with migrants being deported to countries where they won't have access to their HIV treatments.

And people are still being prosecuted for HIV transmission, he said. Again, there's no central database for cases -- and in Switzerland, he said people often don't seek out organizations like Groupe sida Genève when they are arrested, as people do in the U.S. Anecdotal cases reveal that people who are not on treatment are still being unsuccessfully prosecuted, he said.

"This aspect has been forgotten," he said. "We haven't got a solution for them as far as criminalization is concerned. They shouldn't be prosecuted either."

And even if someone is on treatment, it doesn't always protect people. Since the update of the epidemiology law, he said he's watched the HIV advocacy community somewhat disband. They are not still organizing around the issue.

But the Swiss statement, as much of a watershed as it is, is not enough to end HIV criminalization, Boffi said.

"We have prosecutors now who are starting to try to have judgments where the simple fact of transmission is considered proof of mal-intent," he said. "For the time being, this hasn't gone further than the lower courts and fortunately there's been no conviction in the lower courts yet. But it is a risk, and it has to do with the fact that, rather than learn from the campaign that long-term advocacy is necessary, we did the exact opposite."

Today, he said, U=U is a new concept in Switzerland.

"It's strange," he said. "We forgot our own lessons."

Heather Boerner is a science and healthcare journalist based in Pittsburgh. Her book, Positively Negative: Love, Pregnancy and Science's Surprising Victory Over HIV, came out in 2014.

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