Denmark

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Denmark
Whether Specific law enacted: 
Yes - currently suspended
Number of people prosecuted: 
20
Number of people convicted: 
15
Applicable law: 

Until February 17 2011,  Parts 2 and 3 of Section 252 of the Danish Criminal Code had prohibited exposing others to the risk of being infected with a life-threatening and incurable disease. By Government order No.547 of 15 June 2001 HIV/AIDS was established as the only disease covered by section 252. The maximum prison sentence was eight years.  Transmission of other sexually transmitted diseases was not subject to prosecution.

Key wording in the law: 

Unofficial English Translation

Section 252

A person who causes imminent danger to the life or physical ability of another for the sake of gain or in wanton play or similar recklessness shall be liable to imprisonment for any term not exceeding eight years. The same penalty shall apply to any person who recklessly causes a risk of infection of another person with a life-threatening and incurable disease. The Minister of Justice shall determine, upon negotiation with the Minister of Health, the diseases to be covered by subsection 2. The law does not apply for the Faeroe Islands or Greenland.

Government Order Nº 547

§ 1: The following disease is covered by the Danish Criminal Code section 252, subsection 2: HIV/AIDS (human immunodeficiency virus/acquired immune-deficiency syndrome).

Key Cases: 

From the responses received it appears that at least 20 people in Denmark have been prosecuted for HIV exposure or transmission.  Of these, 15 people are believed to have been convicted.

The first prosecution was brought in 1993. However, in 1994 the Danish Supreme Court found the defendant not guilty because it felt that the wording of the existing law (“wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction.  Two further prosecutions also failed for the same reason.

Therefore, in 1994 the Government clarified the legal position by introducing the words 'fatal and incurable disease' in the new section 252, 2.  Since then 15 prosecutions have occurred.  Eight of these have failed in the court for other reasons.  In one case, the charge was dropped because the accused committed suicide at the police station.

Section 252 was amended again in 2001 to specify HIV.  There have been nine prosecutions and eight convictions since 2001. It appears the last two convictions took place in 2008. 

Of the 20 individuals prosecuted, demographic information is available for 19. It is known that:

  • 14 were male, 5 female
  • Nine of these were native Danish;
  • One was of other European descent;
  • One of Middle Eastern descent;
  • Seven were of African origin and
  • One was Caribbean.
Discussion: 

The suspension of Article 252 on 17 February 2011 came about as a result of a Parliamentary question from opposition Unity MP, Per Clausen on behalf of the Parliamentary Legal Committee.

"The Minister should state whether the Ministry [of Justice] will consider changing or eliminating the special clause in the legislation that criminalises [HIV-positive individuals for] unprotected sex with uninfected [individuals] in light of the significantly improved treatment options for HIV-positive people, in particular since treatment is able to reduce the risk of infection to [near] zero."

In his reply, Justice Minister Lars Barfoed explained the history of the legislation and then quoted the Health Protection Agency about HIV 'risk' and 'harm'.

 "Modern combination therapy reduces HIV in the blood by more than 99% during the first weeks of treatment, whereby patients' general condition improves. The strongly reduced amount of HIV in blood and tissue fluids also greatly reduces the risk of transmission from an HIV-positive person on antiviral therapy. This greatly reduced risk is difficult to quantify but considering the risk to be near zero is a theory that some doctors have put forward, but there is no national or international consensus that about this...The life-expectancy of someone with HIV is no different from the age- and gender-matched background population. HIV is, in other words, not in itself fatal if treated in time; medication taken regularly; and there are otherwise no complications from other diseases, etc. Timely treatment is now so effective and well tolerated, that 85-90% of patients can live normal lives if they take their medication daily. It is the 5-10% of patients who are diagnosed late who still experience a substantial excess mortality and morbidity. [However] HIV is still incurable."

He went on to say that the law as it was currently written - casting HIV as a life-threatening condition and criminalising unprotected sex by a person with HIV – appeared to be obsolete and that a working group must consider whether to amend, or totally rewrite, Article 252.
The working group comprising Justice Minister Barfoed and Interior Affairs and Health Minister Bertel Haarder with representatives from the Ministry of Interior, Ministry of Health, the Health Protection Agency and the Prosecutor General, released a 20 page memo in November 2011 confirming that the legal basis for the current statute no longer exists and, therefore, it should be repealed.  It particularly emphasises the increased life expectancy for people on antiretroviral therapy (ART) and concludes that HIV is no longer "fatal" (although it is still "incurable").

The lifespan of a well-treated HIV-infected individual does not differ from the age and gender-matched background population, and...timely treatment is now as effective and well tolerated (i.e, usually without significant side effects) so that an estimated 85-90 per cent of patients can live a normal life, as long as they adhere to their treatment on a daily basis.

The memo then examines HIV-related risk (including the impact of ART on risk) and harm and highlights that it is the estimated 1000 undiagnosed individuals (out of an estimated total of 5,500 people with HIV in Denmark) that are more likely to be a public health concern.
It notes that using HIV as a weapon in terms of violent attacks with needles; rape; or sex with minors could still be an aggravating factor during sentencing under other, revelent criminal statutes. However, a 1994 Supreme Court ruling found that general criminal laws, such as those proscribing bodily harm or assault could not be applied to sexual HIV exposure or transmission.
The memo then presents arguments for and against a new statute. It argues that any new law should not proscribe 'HIV exposure', since it notes, the risks of HIV transmission on ART "are vanishingly small" and so it would be very difficult for any prosecutor to prove that someone was exposed to HIV under these circumstances.
Since ART is now considered to be effective as condoms in reducing HIV transmission risk, the working group considered whether it might be possible to only criminalise untreated people who have unprotected sex, but worried that proving that a person on ART was uninfectious at the time of the alleged act would be too difficult.
Similarly, although they considered the UNAIDS recomendation to only criminalise intentional transmission via non-HIV-specific laws, they were concerned that proving such a state of mind would be extremely difficult.
They concluded that if a new statute were to replace Article 252 it should criminalise non-disclosure unless "suitable protection" is used. (This potentially leaves it open to argue that ART as well as condoms could be considered "suitable protection.") Their suggested wording is

§ x. Whoever has a contagious, sexually transmissible infection which is incurable and requires lifelong treatment and has intercourse with a person without informing them of the infection, or using suitable protection, is punishable by a fine or imprisonment for up to 2 years.

They note, however, that since the harm of HIV is reduced due to the impact of ART that the current maximum sentence of 8 years in prison should be reduced to 2 years and "the normal penalty should be a fine or a short (suspended) term of imprisonment."
Although they are not necessarily recommending this new statute, the working group warns that "decriminalisation...may have unintended, negative consequences" and that public health and community based HIV organisations alike should ensure that health education about HIV and how to avoid it continues unabated because "it is important to send the message that HIV is still a disease that must be taken seriously."

As of writing (March 2012) Article 252 remains suspended.

Of note, civil society advocacy played an important part in the suspension of Article 252.  See entries in Criminal HIV Transmission here and here.

Since that there are an estimated 5,500 people living with (diagnosed and undiagnosed) HIV in Denmark, this places Denmark as one of the top ten countries in the world for prosecutions per capita of PLHIV (3.63 per 1000).

Survey respondents/Organisations working on HIV and the Law: 

Previous survey respondents:

Ministry of Justice, Copenhagen, Denmark.

Office of the Director of Public Prosecutions, Copenhagen, Denmark.

HIV-Denmark, Copenhagen, Denmark.

Organizations working on HIV and the Law:

The AIDS Foundation: http://www.aidsfondet.dk/

HIV-Danmark: http://www.hiv-danmark.dk/

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 residence regulations for people with HIV/AIDS. Neither a medical certificate nor an HIV test result is required when entering the country. Foreigners with a known HIV infection are not subject to specific residence regulations. There are no regulations regarding the control, deportation or expulsion of those concerned.

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