Culpable infection with HIV

A culpable infection of another person with the HI virus is assessed and punished differently in the individual countries.

Typical culpable, i.e., reproachable, intentional or negligent acts of an infected person that cause an infection with HIV include, in particular, unprotected sexual intercourse with sexual partners who are not informed about the infection of the other, as well as the passing on of infectious syringes, especially when using drugs intravenously . The use of blood products contaminated with HIV can also be considered. In some cases, the transmission of HIV during pregnancy or childbirth or through breastfeeding is considered culpable if the expectant mothers have rejected or interrupted measures to prevent the infection from being passed on, in particular in the African Model AIDS Law .

Situation in Europe

In Europe, culpably infecting another person with the HI virus is usually understood as serious bodily harm . She is sentenced to several years in prison, for example in Germany, Austria, Switzerland, the Netherlands and Sweden. Austria has also created its own AIDS law. In Great Britain, Norway and Finland the situation is at least comparable to that in the countries mentioned.

Germany

In Germany the transmission of HIV constitutes dangerous as well as serious bodily harm according to §§ 223 f. Criminal Code .

The unprotected sexual intercourse of an HIV-positive person is dangerous bodily harm "by means of a treatment that endangers life" within the meaning of Section 224 (1) No. 5 . It is assumed that in unprotected sexual intercourse by an HIV-positive sexual partner, what matters is the injury that has occurred and not the dangerousness of the action. As a result, the commission of the act is qualified as a suitability offense. It is irrelevant whether the unprotected sexual intercourse actually leads to the transmission of the HI virus. Both the completed deed and the attempt are punished. In the case of an infection with the HI virus, bodily harm in the form of damage to health is therefore complete even if the disease only breaks out openly at a later point in time. The Federal Supreme Court for Criminal Matters decided in the attempt that an HIV-positive person who is aware of their infection and practices unprotected sexual intercourse at least approves of the fact that their sexual partner may become infected with the HIV virus, even if the actual one is theirs Infectious success may not be welcome. There are no known cases of convictions for protected sexual intercourse. The use of a condom excludes the intent to injure yourself.

The offense of Section 226, Paragraph 1, No. 3 of the Criminal Code makes lapse into serious illnesses a punishable offense. The concept of decay makes it clear that it must be a chronic damage to health, which does not need to be incurable, but persists for a long time and the cure for which cannot be determined. In addition to the infirmity , i.e. a chronic disease condition that damages the entire organism and leads to general debility, culpable infection with the HI virus is also to be subsumed under this characteristic.

If the HIV-negative person is informed about the HIV infection of the sexual partner and consents to unprotected sexual intercourse, then the case law assumes a self-responsible willful self-endangerment, which excludes the objective attribution and thus the perpetrator does not realize the objective offense of §224f StGB Has. The Bavarian Higher Regional Court decided as early as 1989 that participation in this self-responsible risk would remain unpunished for the HIV-positive person. In 2007 the Würzburg Regional Court confirmed impunity for unprotected sexual intercourse between an HIV-positive person and an informed HIV-negative sexual partner. The court, however, leaves it open whether there is a free and responsible self-endangerment or an effective consent.

The realization that HIV-positive people permanently have a viral load below the detection limit under effective treatment and are therefore hardly infectious anymore, leads to the criminally relevant question of whether the criminal charge that unprotected sexual intercourse is “accepting the HIV infection of the sexual partner” taken ”can still be maintained.

Austria

In Austria, the general criminal law provisions in the context of bodily harm offenses apply to the transmission of the HI virus (Paragraphs 83 ff. Of the Austrian General Criminal Code, StGB-Ö). In addition, the Austrian Criminal Code contains provisions on the willful and negligent endangerment of people from communicable diseases and, since 1993, a special AIDS law.

Section 178 of the Austrian Criminal Code reads:

"Anyone who commits an act that is likely to bring about the risk of spreading a communicable disease among people is to be punished with imprisonment of up to three years or with a fine of up to 360 daily rates if the nature of the disease is limited, even if only limited notifiable or notifiable diseases. "

Section 179 of the Austrian Criminal Code reads:

"Anyone who negligently commits the act threatened with a penalty in Section 178 is to be punished with a custodial sentence of up to one year or a fine of up to 360 daily rates."

Sections 178 and 179 of the Austrian Criminal Code are so-called public endangerment offenses. The purpose of the norms is not to prevent a specific danger to an individual, but to avoid a common danger. Ultimately, it is about fighting endemics or epidemics. Protected legal interest is not the physical integrity of a person, but the health situation of the general population.

An act that is likely to create the risk of spreading a communicable disease among people is under threat of punishment. HIV infection is a human-transmitted disease. The infection itself has disease value within the meaning of this provision. The wording “suitable” means that it is sufficient to bring about even an abstract risk of spreading a communicable disease among people. Actually infecting a person with a communicable disease is just as unnecessary as triggering a specific risk of infection. According to teaching and jurisprudence, unprotected sexual intercourse between an HIV-positive and an HIV-negative person is likely to cause a risk of the spread of the HIV virus. One of the objective conditions of criminal liability is that there is a reportable illness or a disease that is notifiable or notifiable “by its nature”. The HIV infection as such is not one of the notifiable diseases under Austrian epidemic law. Sections 2 and 3 of the Austrian AIDS Act only provide for a reporting obligation for cases in which “AIDS” has been diagnosed, but not for the mere positive HIV finding. However, it is undisputed in teaching and practice that HIV infection as such is a disease that is notifiable for “its kind”.

§ 178 StGB-Ö is an intentional offense, the conditional intent within the meaning of § 5 Paragraph 1, 2nd half-sentence StGB-Ö is sufficient if an HIV-infected person carries out unprotected vaginal or anal intercourse with an uninfected person. HIV-infected people who do not know their HIV status, but would have had a reasonable cause for an HIV test, act negligently in unprotected sexual intercourse and are punished according to § 178 StGB-Ö.

Austrian AIDS law of 1993

AIDS-G § 4 (1) Persons in whom an infection with an HIV has been proven or the result of an examination according to paragraph 2 is not clearly negative, it is forbidden to tolerate sexual acts on their own body or on others for commercial purposes to undertake. (2) In addition to the Venereal Diseases Act, StGBl. No. 152/1945, and the examinations prescribed on the basis of the ordinances issued on this basis, persons must undergo an official medical examination for the presence of an HIV infection before starting work within the meaning of Paragraph 1. In addition, persons who carry out activities within the meaning of Paragraph 1 have to undergo a regular medical examination for the presence of an HIV infection, but at least every three months. (3) The district administrative authority does not have to issue or withdraw the ID provided for in Section 2 of the Ordinance in Federal Law Gazette No. 314/1974 if 1. an HIV infection is present, 2. the result of an examination within the meaning of Paragraph 2 is not clear is negative, or 3. the performance of an examination within the meaning of Paragraph 2 is refused. (4) Every public health officer is obliged to inform persons who carry out activities within the meaning of Paragraph 1, on the occasion of examinations within the meaning of Paragraph 2 about the possibilities of infection with HIV, the rules of conduct to avoid such an infection and the prohibition pursuant to Paragraph 2 1. To teach. AIDS-G § 5 (1) If an HIV infection is found in a person during an examination, the doctor is obliged to inform the person concerned of this in the context of detailed personal information and advice. (2) Every doctor who informs a person that they are infected with HIV must also instruct them about the possibilities of infection and about the rules of conduct to avoid such an infection. AIDS-G § 9 (1) If the offense does not constitute a criminal offense falling within the jurisdiction of the courts, an administrative offense is committed and is punished for this with a fine of up to 7,260 euros, who 1. contrary to § 4 para. 1 commercially tolerates sexual acts on one's own body or performs such acts on others; 2. commercially tolerates sexual acts on one's own body or carries out such acts on others without undergoing an official medical examination in accordance with Section 4 (2) before taking up this activity or regularly. (2) Anyone who commits one of the administrative offenses referred to in Paragraph 1 after having been punished twice under Paragraph 1 within the last three years shall be punished with imprisonment for up to six weeks or with a fine of up to 7,260 euros. (3) Anyone who does not submit the notification provided for in Section 2 (1) or does not submit it in good time (Section 3 (1)) commits an administrative offense and is to be punished with a fine of up to EUR 2,180.

Any consent of the HIV-negative person to sexual contact with the HIV-positive partner is not decisive for the criminal liability. The protected good “health of the population” is not accessible to the consent of an individual. On the other hand, cases are known in court practice in which the consent of the non-infected person was considered to mitigate the penalty. However, no uniform practice is discernible.

Sweden

HIV transmission is sanctioned as an offense against bodily harm in Sweden. A simple bodily harm within the meaning of Chapter 3 Section 5 of the Swedish Criminal Code is a fact also if an illness is transmitted. Chapter 3, Section 6 of the StGB-S provides for an increase in penalties for serious bodily harm. It should also be noted that anyone who, through gross negligence, exposes someone else to mortal danger or the danger of serious illness (Chapter 3 Section 9 StGB-S: “A person who through gross carelessness exposes another to mortal danger or danger of severe bodily injury or serious illness, shall be sentenced for creating danger to another to a fine or imprisonment for at most two years "(in German: A person who, through serious negligence, exposes others to fatal danger or the danger of serious bodily harm or serious illness , should be sentenced to a fine or imprisonment of a maximum of two years for causing harm to others.)). In legal terms, this is a dangerous offense, similar to Art. 231 CH-StGB. According to the wording, however, the Swedish provision only protects individual legal interests and not general public health. The Swedish Supreme Court applied this norm in a case in which the prerequisites for punishment according to the classic crimes of bodily harm were not met due to insufficient intent. As a result, an HIV-positive person is liable to prosecution for unprotected sexual intercourse without informing the sexual partner about the HIV status for negligent dissemination of a dangerous disease.

Netherlands

The transmission of HIV can constitute a bodily harm offense under current criminal law. These are regulated in the Dutch Criminal Code (StGB-N) in Art. 300 ff. Serious bodily harm is threatened with a maximum sentence of up to 12 years in prison (Art. 303 para. 1 StGB-N). If the bodily harm leads to death, the penalty is up to 15 years (Art. 300 Para. 2 StGB) imprisonment. Art. 82 StGB-N provides that a serious illness which cannot be cured and which can lead to a disability is tantamount to serious bodily harm. An attempt is punished according to Art. 45 StGB-N if "the intention of the perpetrator will have manifested itself by a start of execution of the crime" (in German: if the intent of the perpetrator is manifested by the beginning of the execution of the crime ). Attempting to cause simple bodily harm (Art. 300 StGB-N) is not punishable (Art. 300, Paragraph 5, StGB-N).

Switzerland

In the key decision 6B_337 / 2012 of March 19, 2013, planned for publication, the Swiss Federal Supreme Court ruled :

«In its previous case law, the Federal Supreme Court consistently qualified the HIV infection as life-threatening serious bodily harm within the meaning of Art. 122 Paragraph 1 StGB (or Art. 125 Paragraph 2 StGB). (...) The previous case law of the Federal Supreme Court cannot be adhered to insofar as it can no longer be said today, in view of the scientific knowledge and medical treatment options, that the state of being infected with the HI virus is generally life-threatening as such in the sense of Art. 122 para. 1 StGB is. (...) The fact that HIV infection as such still represents a disadvantageous pathological change with disease value, even taking medical advances into account, is beyond discussion. If this infection can be traced back to an act of transmission, almost unanimous opinion can be assumed that bodily harm has been committed. (...) The only question is whether it is to be subsumed under the offense of simple bodily harm (...) or under that of serious bodily harm »(E. 3.4.1–3.4.3)

In the case to be decided, the Federal Supreme Court referred this question back to the lower instance for clarification. In addition, it confirmed the guilty verdict for spreading human diseases (Art. 231 No. 1 Paragraph 1 StGB).

Poland

Anyone who knows of their HIV infection and infects another person with HIV can be punished with up to ten years imprisonment in accordance with Art. 161 § 1 KK. The burden of proof (of HIV transmission) lies with the person who claims to have been infected. Genetic studies (phylogenetic tests) are used to gather evidence. Polish criminal law also includes strict liability: if an HIV-positive person has sex with other people and has not previously informed them of his or her infection, he or she faces a prison sentence of up to three years - regardless of whether there has been a specific HIV transmission Has. However, according to the speaker (J. Plichtowicz-Rudnicka), there is a certain legal uncertainty that the legal text speaks of HIV, but not of AIDS. In addition, Polish criminal law offers the possibility of reducing the sentence: those who are seriously ill (here: AIDS) are punished with a maximum of one year in prison instead of up to three years. Multiple offenses (HIV transmission or possible transmission) can be accumulated into a higher total penalty. On the other hand, the court can declare a case to be “pending” - in this case no judgment will be given and no penalty will be imposed. However, should there be further proceedings, both facts will be taken into account in the judgment. Sentences can be suspended on probation (usually probation period of two to five years). The drastic reduction of the infectiousness with successful HIV therapy ("EKAF-Statement") has not been taken into account so far in the case law and the assessment of sentences, to the knowledge of the speaker. Nobody is obliged (among other things according to Art. 360 Code of Criminal Procedure) to disclose their HIV infection (exception sex partners, see above). However, it is common practice for pilots, court clerks and police officers, for example, to lose their jobs as soon as they become aware of their HIV infection.

Situation outside of Europe

Outside Europe, a culpable infection with HIV is sometimes rated and condemned as attempted murder , as happened in May 2009 in Canada and in August 1994 in the USA. The case of a mass HIV infection in Libya, which has been present in the media for a long time, is not discussed further because of its special background. For more information, see HIV process in Libya .

Canada

Canada does not have any HIV / AIDS-specific law punishing HIV transmission in either criminal or health law. The Canadian Criminal Code provides various provisions that apply in the event of a transfer, in particular this concerns the crimes of bodily harm in Art. 265 ff of the Canadian Criminal Code (StGB-C). A criminal assault is committed according to Art. 265 StGB-C, who deliberately touches another person without that person's consent. The consent is not valid if it is obtained fraudulently (Art. 265 Para. 3 StGB-C). Assault is punished with up to five years in prison. The sentence is increased to up to 14 years if the assault resulted in bodily harm (assault causing bodily harm, Art. 267 StGB-C) or serious bodily harm with danger to the life of the injured person (aggravated assault, endangers the life of the complainant, Art. 268 StGB-C). Long-term penalties are also provided for “sexual assault” (ten years in prison, Art. 271 StGB-C) and for “aggravated assault” (14 years in prison, Art. 272 ​​StGB-C) and “aggravated sexual assault” (Art. 273 StGB-C). With all of these (intent) offenses, the attempt is also punishable. The Canadian criminal law provides in Art. 219 StGB-C penalties for criminal negligence, if the life or health of another person is endangered by a negligent act. If there is a legal obligation to act, the omission of an act is also to avoid a danger to life or health. If the criminally negligent act leads to serious bodily harm, the penalty is up to ten years in prison (Art. 221 StGB). The application of this criminal norm is only possible if the HIV virus is actually transmitted through unprotected sexual intercourse. In the case of negligence, the attempt is not punishable.

US states

No fewer than 24 US states have laws that impose criminal obligations on people who are HIV positive to have sexual intercourse. The threats of punishment vary between a year in prison or a fine (e.g. in Virginia ) and a maximum sentence of 30 years in Arkansas , in Louisiana there was even fifty years of forced labor for an attempted murder for a doctor for deliberately infecting his ex-wife. Ratio legis of this legislation is based on the idea that informed sexual partners are more willing to take the necessary protective measures against HIV transmission. Of the total of 24 states that have HIV / AIDS-specific criminal law provisions, only the law in California distinguishes between criminal unprotected sex and non-criminal protected sex. This penal norm limits the criminal liability of sexual intercourse in HIV-positive people in several ways: On the one hand, the criminal liability for protected sexual intercourse and for protected or unprotected oral intercourse does not apply; on the other hand, information about the serostatus to the sexual partner means that unprotected sexual intercourse is not punished either becomes. Unprotected sexual intercourse without information about the HIV status to the sexual partner is ultimately only punished if there is an intention to infect. The provision further specifies that knowing one's (own) HIV status alone is not enough to prove an intention to infect.

From the beginning of HIV infection to 2008, there have been 345 legal charges against people living with HIV / AIDS for transmission (actual or attempted) across the United States. 205 people were convicted. The charges and convictions up to 2003 were evaluated in a study. Of a total of 316 charges, around 70 percent related to sexual contact. In almost a quarter of the cases (75) HIV-positive people were charged with “biting”, “spitting” or “scratching”. The remaining cases involved the sale of unclean blood or non-sterile injection material. In 95 cases, it was about sexual intercourse without information about the HIV status of one sexual partner. Of these 95 cases, 42 were convicted. A total of 84 charges related to HIV-positive people who had informed their sexual partners of their HIV status. There were 65 convictions.

reviews

AIDS aid organizations see the general criminal liability of HIV infections as an obstacle to efficient prevention against new HIV infections and advise against the application of special AIDS laws. The legislators of some states, on the other hand, hold that the legal interest of the health of the individual or the population outweighs the sexual freedom of movement of an infected person (see the sections: Situation in Austria, legal situation in Sweden) or, in the case of HIV-positive people, the increased willingness to participate Safe sex with HIV-negative sexual partners (see Legislation and case law in US states).

swell

1. ↑ ^{a b c d e f} Kurt Pärli , Peter Moesch Payot: The criminal handling of HIV / AIDS in Switzerland in the light of the concerns of HIV-AIDS prevention  ( page no longer available , search in web archives )  Info: The link was automatically created as marked defective. Please check the link according to the instructions and then remove this notice.   . Retrieved October 10, 2009 (PDF; 1.4 MB)
2. ↑ ^{a b c} ABCNews.com: Lee Dye: Scientists Use Virus to Trace Assault Suspect . Retrieved October 10, 2009 (English)
3. ^ Hirsch in: Leipziger Commentary. 2005, p. 114.
4. ^ Wessels / Hettinger: Criminal Law. 2012, p. 90.
5. ↑ Lily in: Leipziger Commentary. 2005, p. 22.
6. ↑ Full text on the website of the Federal Supreme Court  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.  
7. ↑ ^{a b c} [1]
8. ↑ (English) (PDF; 247 kB)
9. ↑ (German) ( Memento of the original from September 25, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. 
10. ↑ Deutsche AIDShilfe - 10 reasons against criminalizing HIV transmission

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