Crime and Punishment: An International HIV Disclosure Dilemma

This article originally appeared on, Canada's Online HIV Magazine. It is being reposted here in two parts.

Read part two: "Crime and Punishment: The U.S and Canadian Contexts of an International HIV Disclosure Dilemma.

There are times when many people outside the United States and Canada experience National Enquirer levels of disbelief at what's goes on in parts of North America in the field of sexual behavior and politics. The current criminalization of people with HIV who fail to tell their partners of their status is just such a moment in time. The sex may be safe and the viral load may be undetectable but you can still be charged with using your body and your virus as a murder or assault weapon, if you don't pre-warn that you're living with HIV.

Have lawmakers never heard of personal, sexual responsibility and the right to choose and refuse? Have thirty years of AIDS advertising been completely wasted? It appears that someone negative who has sex with someone positive will always (legally) be in the right if it comes to a dispute. Never mind that virtually everyone on the planet of sexual maturity knows by now, that the way to avoid disease is to have safe sex and the only safe way to be certain is to undergo an HIV test ten minutes before sex and even then, that person could have been infected in the last three months. After all that, they always have the choice whether to have sex or not! Of course I wouldn't include rape victims and other powerless persons; they are clearly cases apart. Yet, lawmakers in two of the supposedly most advanced and civilized societies in the world brush personal responsibility aside and automatically make the negative person the victim and the positive person the villain! Where's the balance? You could say that having HIV is the equivalent of being electronically tagged for the rest of your life as it is ... but they want to sentence you again and lock you away!

The whole subject of criminalizing people who have HIV and may or may not transmit it, is both a judicial and moral minefield. Sentences for transmission across the world range from a small fine, to life imprisonment or even worse in some countries. This shows how difficult fair legislation can be, especially when individual views and emotions clash with stigma and public health issues. However, to punish someone for having the virus; not transmitting it because of safe sex and undetectable viral loads and preferring not to tell the unharmed partner; is the world completely upside down! Exceptions to this may be those who genuinely set out to infect someone, or someone who infects through rape, or sexual assault but in the vast majority of cases this doesn't apply.

From a strictly personal point of view, it's just too jaw-dropping for words but I would hazard a guess that most people's reactions here in the Netherlands (including heterosexuals) would be ones of astonishment at the sheer unfairness of it all. Then I began to wonder if I wasn't perhaps jumping the gun with that reaction and decided to find out exactly what the legal situation here is regarding disclosure and the transmission of HIV. I also looked at other parts of the so-called First world to see if there is any form of universal consensus on the subject. Maybe knowing how other countries deal with the issue might bring some clarity? Certainly, it should highlight those administrations that are making politically influenced legal judgements, based on moral and populist sentiment, which stigmatize a single group.

It's a bit of a grey area here in the Netherlands. They work on the principle that if it isn't in the statute book, then it can't be illegal. However, there is no explicit law that either excuses HIV transmission, or finds non-disclosure not a problem. The highest judicial authority in the land (the Hoge Raad) has however, made several significant judgements since 1999 and have concluded in each case that it's practically impossible to prove intent when it comes to HIV. The Hoge Raad is quite willing to prosecute people who intentionally infect others but it finds that having HIV and keeping that information to yourself; combined with having unprotected sex is no reason at all to assume intent. Basically this means that although the police may wish to prosecute in these circumstances, it will never come to anything because the highest court in the land has ruled out any possible judicial consequences. It may sound somewhat "sitting on the fence" but it's about as pragmatic a ruling as you could find.

Believe me the ruling has been severely tested recently. In the years after 1999, a number of individuals were brought to court and prosecuted (on the grounds of attempted grievous bodily harm), only to have the cases overturned on appeal to the Hoge Raad. However, more recently the exact nature of this policy was tested when a number of barebackers in the north of the country were found to have been injecting drugged or drunken guests at parties with HIV-infected blood (an absolute exception by the way!). This was more or less conclusively proved and quite severe sentences (by Dutch standards) were issued. However, after successful appeals, parts of the case are again going to be reviewed because nobody can be certain that the "victims" hadn't already contracted the virus through earlier, other means. They were after all, mainly seasoned party-goers. So you have a situation which highlights how shallow the North American prosecutions actually are. The defendants here had little to defend and had admitted their guilt in the face of evidence but whether they had actually infected their "victims" is almost impossible to prove, so therefore attempted murder, or grievous bodily harm becomes almost irrelevant. It's a system which looks at HIV in the most sensible and objective light possible at the highest possible levels. In 2005, the Dutch Cabinet even decided to avoid creating any law on the subject which may turn out to be unfair and unworkable in reality. So, in black and white terms, you may find someone taking you to court for infecting them without your knowing that they were positive but working through the legal system, that person will never be prosecuted without 100% proof that it was deliberately done.

Evidence of the success of such pragmatism is that the HIV figures in the Netherlands are proportionately far smaller than in countries with more severe legal enforcement. It doesn't stop here either; the teenage pregnancy figures are miniscule in comparison to the United States and drug use (and the social problems that ensue), are again proportionately a fraction of those in North America. For all those right wing political figures who see the Netherlands as the gateway to Hell and damnation; they could learn a lesson as to how pragmatic law making and social policies are not abused but lead to less social problems.

However (and this is a major point) these liberal policies based on common sense and fairness cannot be hijacked by future populist political leaders because the Netherlands always has a coalition government in power. The Christian democrats and other Christian parties may not be happy about certain relaxations and what their instincts tell them are "immoralities" regarding sex but they can't do a damned thing about it because their views are always tempered by the other moderate middle parties in the coalition. It has been this way for a long time and will remain this way for the foreseeable future, thanks to the political structures here. It can of course also be extremely frustrating because almost everything that's promised in election manifestos gets watered down in the compromises made after getting into power. However, its greatest advantage is that extremist views can never gain the upper hand. That word again; pragmatism! It has resulted in this country being one of the most relaxed about things people enjoy in life and one of the most socially balanced in the world. A large Islamic and therefore by nature, unbending population may affect things in the future but for now, the Netherlands is still one of the best places to be HIV positive in the world.

In France, the situation is fairly similar to that of the Netherlands in that there are no specific laws regarding HIV transmission. However, as in most countries, there have been individual cases which have helped shape both public opinion and judicial decision-making. Like the barebackers in the north of the Netherlands; one particular case caught the public imagination in 2004. A man called Christophe Morat was sentenced to six years imprisonment for failing to disclose his status to two women, both of whom became infected. One later committed suicide and largely due to this, Morat's appeal was rejected out of hand. The other woman is now a member of an action group (Femmes Positives) determined to get the French government to create a special law allowing women to prosecute former lovers. This widened the debate in France as to whether HIV positive people could be deemed either "victims" or "perpetrators" in the eyes of the law. Equally many argued that the concept of "equal responsibility" should remain, especially with regards to contraception. For the time being, the French, like the Dutch remain pragmatic about the problem, at least in the eyes of the law.

In 2011, the Danish government suspended one of the harshest laws in Europe concerning HIV transmission. Basically, just as we're now seeing in the States and Canada, people could be found guilty even without infection; so negligent exposure to the possibility of infection was as equally punished as direct transmission. Fortunately, a serious lobby of medical experts, legal professionals and people living with the virus were able to persuade the government to look again; largely thanks to the success of HAART and the resulting unlikelihood of infection. In 2011, the laws were suspended and a thorough enquiry based on science and not stigma was implemented.

In 2010 in Germany, a case hit the headlines and was reported all across Europe. In 2009, Nadja Benaissa, a well-known pop singer was arrested after three men accused her of not revealing her HIV status before having sex. Only one subsequently tested positive. After that, she was released without anybody being sure why but early the following year she was arrested again and charged with one count of aggravated assault and two of attempted aggravated assault. Despite the fact that infecting someone with HIV carries a prison sentence of six months to ten years, she was given a two year suspended sentence. The lenient sentence was put down to the fact that she'd confessed to having the sex and not revealing her status and had apologized profusely for the harm caused;

"In those days I was careless ... I'm sorry from the bottom of my heart," she told the court. It was also taken into account that she was only seventeen at the time and she was tried in a juvenile court. This could be seen as an example of a court respecting the rule of law but looking beyond the cold hard facts, to examine the person they were dealing with and acting accordingly.

Yet there are examples of the other side of the coin. In 2004, it was claimed that Hans-Otto Schiemann, a 56 year old German, tried to infect nearly a hundred Thai women while living in Thailand. He had a self-confessed pathological hatred of Thai women (one of whom was his wife) so a motive was easy to spot. However, because there are no laws in Thailand to prosecute unprotected sex or its consequences, he was eventually deported back to Germany for outstaying his visa! Clearly the man had psychological problems because he ended up being deported for a second time after he was discovered in Thailand again. Here's a case (without knowing all the facts and evidence) for which the law probably was found wanting. The lack of a law meant that the man almost got off scot free -- it's a very delicate balance!

A New Zealand case set the tone for dealing with these cases in that land. In 2005, a New Zealander had unprotected sex with his girlfriend and didn't disclose his status. She initially told the man's family that she was positive but it was a lie and she remained negative. However, charges were still brought against the man, of causing mental stress and trauma and he was sentenced to 300 hours of community service, six months supervision and $1000NZ costs to cover the girl's therapy costs. He was in the end convicted of "criminal nuisance" which covers a multitude of sins. Unfortunately for him, another girl heard of the case and tried to bring a similar case to court. However, this case was dismissed because not only did she remain negative but he'd used a condom.

Were these pragmatic court judgements; or too severe; or too lenient? It shows how subjective the whole subject can end up being. I'm sure the court thought they were being both lenient and pragmatic but had the guy even committed a crime? To my mind it's up for discussion.

In Australia, these laws tend to be more frequently applied and are termed, criminal acts that transmit, or risk transmitting, a serious disease (including HIV) plus recklessly endangering another person's life or causing grievous bodily harm. Depending on the state in which you live, penalties can range from a maximum of ten years, to life imprisonment. Here, transmitting HIV can be considered a breaking of both public health and criminal laws, thus compounding the penalty possibilities.

The UK's laws in this area are based on "recklessly inflicting grievous bodily harm." This charge carries a maximum prison sentence of five years but certain factors must be established:

  • The defendant did in fact infect their partner.
  • The defendant was aware of the risk of transmission. In theory they may not have had a positive test, but they will have "known" they were infected.
  • The complainant did not explicitly give informed consent to sex with an individual they knew had HIV.
  • The defendant did not take steps to protect their partner -- consistent condom use is a defense.

These seem on the face of it to be as reasonable as you can find on international statute books and in fact nobody has been prosecuted for intentional grievous bodily harm using HIV as a weapon. It's considered that the burden of proof is just too difficult and it is recognized that sex is actually a pretty inefficient way of transmitting HIV if someone intended to do it.

In 2010, the police in the UK themselves issued comprehensive guidance as to how to treat this subject both fairly and with sensitivity and reckless transmission prosecutions should only go ahead if there is new infection and evidence of intent. Furthermore, if someone living with HIV is taken into custody, their medication should not be interrupted and their confidentiality should be respected (a far cry from the name and shame tactics in North America!). In short, in the UK, you can be charged with assault or grievous bodily harm only if HIV transmission has occurred; not simply if there was no disclosure, nor if there was exposure to HIV but no transmission occurring.

Recently a UK gay man went to court in just such a case but was found not guilty after the defense successfully claimed that phylogenetic analysis (the establishment of both strain and source of HIV) could not prove that the man had deliberately infected the complainant. This use of science forms the basis of the appeals in the earlier mentioned Dutch case too. This seems to encouragingly show that the British authorities are implementing their own pragmatic conclusions. It also seems that more and more legal experts are realizing that the burden of proof in HIV transmission cases is extremely difficult; especially in cases of multiple sexual contact; which has to be both fairer for people with HIV and easier for the law to deal with.

However, at least fifteen people have slipped through the system in Great Britain and been sent to jail for up to ten years, (as in the case of an asylum seeker from Malawi). One can only hope that good intentions become reality and that enlightened thinkers win the day.