Austria

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

Austria
Whether Specific law enacted: 
No
Number of people prosecuted: 
At least 56
Number of people convicted: 
At least 55
Applicable law: 

Sections 85, 178 and 179 of the Austrian Penal Code.

These are not HIV-specific laws.

Both potential HIV exposure and alleged HIV transmission (as well as other communicable diseases, including viral hepatitis, tuberculosis and other STIs) are subject to prosecution.

Sentences range from a fine through to 5 years imprisonment.

In 2010, in answer to questions by an MP (see attachments below), the Austrian Minister of Justice expressed her legal opinion of how Sections 178 and 179 could apply to HIV exposure and transmission, recognising that sex with a condom or unprotected sex with an undetectable viral load would not be a criminal offence. Although she stated that the heads of the prosecution offices would be informed of her views, it does not actually change the law and is not binding on the courts. 

Key wording in the law: 

English Translation:

§85. Bodily injury with serious, lasting consequences. If the offence has caused
1. loss or serious impairment of the injured person’s speech, sight, hearing or reproductive ability,
2. a considerable mutilation or a striking deformation or
3. a serious suffering, lingering illness or professional inability forever or for a long period of time, the offender is punished with imprisonment of six months to five years.

§ 178. Anyone who intentionally commits an act which is likely to cause the danger of spreading a transmissible disease to human beings, has to be punished with imprisonment up to 3 years or fine up to 360 day rate, provided that the disease is certifiable.

§ 179. Anyone who negligently commits an act which is likely to cause the danger of spreading a transmissible disease under human beings, has to be punished with imprisonment up to 1 year or fine up to 360 day rate, provided that the disease is certifiable.

Original Wording:

§ 85. Schwere Körperverletzung mit Dauerfolgen. Hat die Tat für immer oder für lange Zeit
1. den Verlust oder eine schwere Schädigung der Sprache, des Sehvermögens, des Gehörs oder der Fortpflanzungsfähigkeit,
2. eine erhebliche Verstümmelung oder
3. eine auffallende Verunstaltung oder ein schweres Leiden, Siechtum oder Berufsunfähigkeit des Geschädigten zur Folge,so ist der Täter mit Freiheitsstrafe von sechs Monaten bis zu fünf Jahren zu bestrafen.

§ 178. Wer eine Handlung begeht, die geeignet ist, die Gefahr der Verbreitung einer übertragbaren Krankheit unter Menschen herbeizuführen, ist mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe bis zu 360 Tagessätzen zu bestrafen, wenn die Krankheit ihrer Art nach zu den wenn auch nur beschränkt anzeige- oder meldepflichtigen Krankheiten gehört.

§ 179. Wer die im § 178 mit Strafe bedrohte Handlung fahrlässig begeht, ist mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bis zu 360 Tagessätzen zu bestrafen.

Key Cases: 

Vertical transmission: A woman who denied that HIV was harmful and who rejected ART during her pregnancy following her HIV-positive diagnosis; gave birth to her daughter naturally and at home with the help of a midwife who was not informed about her HIV infection despite the former arrangement with the doctors that the birth should be a Caesarean; breastfed the newborn; and did not allow for the provison of ART to her daughter received 14 months' probation in March 2012.  The woman - whose husband had been charged as co-conspirator, but who died in May 2010 – was originally given a ten month suspended sentence in July 2010.

Oral sex: In March 2012, a 17 year-old boy was convicted of HIV exposure after his 16 year-old girlfriend performed oral sex on him without him first disclosing that he was living with HIV. The judge said that even oral sex with condom would have been criminal as the use of condoms would not diminish the risk of infection.

Forced HIV testing: A man in Austria is currently taking a case to the Constitutional Court that challenges the forcible testing of blood for HIV (as well as for use in phylogenetic analysis) that was legalised on 1 January 2012 through an amendment of the Criminal Procedure Code by the Prevention of Terrorism Act 2011.

HIV as a serious harm/misuse of phlyogenetic analysis: In November 2011, a man was convicted under §85 and sentenced to 3 years without probation (the man had no criminal record) for allegedly infecting two other men (see attached news report in German). The court believed only the two complainants (who alleged that the only unprotected sex they had in their lives were with the defendant) because the court said they were more credible then the defendant. The defendant had only been arrested after the result of phylogenetic analysis (to which he voluntarily had agreed) which found  99,16% and 99,39% correlation between his virus and the two defendants. They court did not appear to take into account the limitations of phylogenetic analysis. The court ruled that infection with HIV, without any symptoms, constitutes "bodily injury with serious, lasting consequences"  This finding was based on the expert opinion of two expert witnessness called by the court who told the court that asymptomatic HIV infection is a comparable harm to severe kidney and liver disease. The case is pending on appeal.

 

HIV-positive man acquitted for ‘oral sex without ejaculation’ (Update) December 18, 2012. A gay man on trial for allegedly exposing his ex-partner to HIV during ‘oral sex without ejaculation’ has been acquitted. The judge told the 37 year-old defendant that he had acted “entirely properly” according to Austria’s ‘safer sex’ guidance.

Discussion: 

Obtaining accurate numbers of arrests, prosecutions and convictions is difficult in Austria, despite the availability official statistical data concerning the latest number of prosecutions and convictions under §178 and §179 by the Austrian Ministry of Justice. However, these statistics display a conviction only for the most serious offence. If a person is convicted for more than one offence, the conviction only counts with the most serious one. So the number of convictions for § 178 and §179 do not include convictions under §85 for (attempted) causing of bodily harm, alone or together with §§ 178/179.

A 2009 presentation by Dr Helmut Graupner covering the period 1990 - 2007 showed there had been 127 prosecutions under § 178 and §179.  The presentation includes further detailed analysis by Professor Hinterhofer, covering 2004-2006, which found that 37% of prosecutions during this time period were HIV-related, with 33% related to hepatitis C, 27% related to tuberculosis and 3% related to gonorrhea.

Dr Graupner also provides the numbers of convictions under §178 and §179 for the period 2008-2010. These are as follows:
2008: 8 (5 men, 3 women)
2009: 9 (9 men, 0 women)
2010: 2 (1 man, 1 woman)
Source: Judicial Statistics of Crime issued by Statistik Austria

A further source of recent prosecutions comes from a Parliamentary question asked by MP Petra Bayr in 2010 (see above) that confirmed the Ministry of Justice's position on the use of condoms and undetectable viral load.  She asked five questions relating to the use of §178 and §179 for HIV-related prosecutions. Questions and answers (unofficially translated from the original German) are below.

Q: In the past five calendar years how many people were actually accused or convicted under § 178?

A: From the reports I have from 2005 to 2009, 52 people were accused and 38 persons convicted under § 178 in the first instance.

Q: How many of these were HIV-related and how many for which other factors?

A: 15 cases related to HIV and 37 cases related to other diseases. 

Q: In the past five calendar years, how many people were actually accused or convicted under § 179?

A: In the period 2005 to 2009, eight people were charged under § 179. In the same period, nine people were convicted under § 179  (of which three were
initially charged under § 178).

Q: How many of these were HIV-related and how many for which other factors?

A: Three cases related to HIV and five related to other diseases.

Q: In how many of the HIV-related cases mentioned above was  reference to § 178 or § 179 the only basis for a conviction?

A: In eight cases HIV was the only basis for a conviction.

Q: How many of the above cases have been subject to an appeal and retrial, and how many of these were HIV-related?

A: In three cases there was an appeal, of which two at least partly were HIV-related.

Taken together with reports of more recent prosecutions, this suggests that approximately 35% of prosecutions under §178 or §179 have been HIV-related, resulting in our latest estimate of 55 cases.  It is likely, however, that the actual number is much greater. 

Given that there are an estimated 15,000 people living with (diagnosed and undiagnosed) HIV in Austria, this places Austria as one of the top ten countries in the world for prosecutions per capita of PLHIV (3.67 per 1000).

Survey respondents/Organisations working on HIV and the Law: 

Previous survey respondents: AIDS-Hilfe, Salzburg and AIDS-Hilfe, Wien.

Latest information provided by: Dr. Helmut Graupner

Further reading: 

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no specific entry or residency regulations for people with HIV/AIDS. Neither a medical certificate or an HIV test result is required when entering the country.

Sex workers are required to undergo regular health checks. This requirement is not connected with visa or residency permits.

Antiretroviral medication can be imported for personal use.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships:  No law

Female to Female Relationships: Legal

Age of consent:  Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Equal/almost equal substitute nationally recognized

For updated information, please go to: http://ilga.org