Norway

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

Norway
Whether Specific law enacted: 
No
Number of people prosecuted: 
17
Number of people convicted: 
15
Applicable law: 

UNOFFICIAL ENGLISH TRANSLATION OF SECTIONS IN PRESENT AND NEW NORWEGIAN PENAL CODE RELATED TO TRANSMISSION OF INFECTION

Present Penal Code of 1902 section 155:
Section 155. Any person who, having sufficient cause to believe that he is a bearer of a generally contagious disease, wilfully or negligently infects or exposes another person to the risk of infection shall be liable to imprisonment for a term not exceeding six years if the offence is committed wilfully and to imprisonment for a term not exceeding three years if the offence is committed negligently. Any person who aids and abets such an offence shall be liable to the same penalty. If the aggrieved person is one of the offender’s next-of-kin, a public prosecution shall be instituted only at the request of the aggrieved person unless it is required in the public interest.

New Penal Code of 2005 section 237 and 238 (not in force):
Section 237. Transmission of infection Any person who infects another person with a communicable disease that is hazardous to public health, or who exposes another person to the risk of such infection, shall be liable to a fine or imprisonment for a term not exceeding one year.

No penalty shall be applicable in cases where the person who has been infected with a sexually transmitted disease or exposed to the risk of such infection is the spouse or cohabitant of the person who has transmitted the infection or exposed the person to the risk of infection, and the spouse or cohabitant has consented in advance to being exposed to such risk.

Negligent transmission of infection is punishable by fines or imprisonment for a term not exceeding one year.

Section 238. Aggravated transmission of infection Aggravated transmission of infection is punishable by imprisonment for a term not exceeding six years. In deciding whether transmission of infection is aggravated, special importance shall be attached to whether it has resulted in
a) the spread of the disease to the general public or the risk of such spread, or b) loss of life or grave injury to body or health. Aggravated transmission of infection through negligence is punishable by imprisonment for a term not exceeding three years.

The Norwegian versions can be found here:
1902 Penal Code § 155: http://www.lovdata.no/all/tl-19020522-010-018.html#155
2005 Penal Code §§ 237-238: http://www.lovdata.no/all/tl-20050520-028-025.html#237
(see §§ 21-23 concerning the degree of culpability required. http://www.lovdata.no/all/tl-20050520-028-004.html#21)

Discussion: 

Currently §155 is in effect.  §237 and §238 were passed to replace §155 in 2005, but are currently not enforced pending the outcome of the Norwegian Law Commission on penal code and communicable diseases hazardous to public health which will deliver its findings by October 1st 2012.

According to our 2012 informant, Secretary to  Commission, Kirsten M. Been Dahl, there is no system by which one can find all relevant cases so there may be more, especially first instance judgments which are not made available on a regular basis made on www.lovdata.
Cases where the prosecution only or mainly has been in relation to section 155: 16 cases since 1999 (+ 1 in 1930); convictions in all cases (except one where the first instance judgment was found incorrect by the appeal court and is supposed to be considered again by the first instance court); all about HIV (+ one in 1930 regarding “venereal disease”); often more than one “complainant” (person who has been exposed or infected); 6 cases about exposure without infection, the rest about infection or infection of one or more complainants and exposure of the others;  the highest sentence: 5 years of imprisonment, the two lowest: 120 days of imprisonment and six months of imprisonment, whereof three months suspended, respectively (except the 1930 case: 90 days).
Cases where the prosecution has been in relation to section 155 in addition to other crimes which will have influenced the sentence, e.g. rape or sex with minors, and sometimes also other forms of violence or other crimes: 7 cases; 6 convictions; 2 cases only hepatitis C, 1 case HIV + hepatitis C, 4 cases only HIV; mainly exposure without infection, infection in at least one of the hepatitis C cases; one case in 1992, the rest since 2005.
As some of the cases have to appealed, there might be more than one judgment/decision in each case. Four cases have been decided on by the Supreme Court (in addition to the one in 1930).
In addition, there are examples where transmission of or exposure to HIV or other STIs has been a factor in the sentencing for crimes like rape, sex with a minor etc. even when there hasn’t been a prosecution under section 155 in addition the other crimes.

Of note, since the 2008 update (which found ten prosecutions in the four year period, 2004-8):

  • there have been prosecutions not only for HIV, but also a few prosecutions for hepatitis C (alone or together wih HIV)
  • there have been prosecutions for sex between men (prior to 2008, all prosecutions were for heterosexual sex)
  • there have been prosecutions in Oslo (prior to 2008, all prosecutions took place outside the capital city)

Subsequent, to Ms Dahl's providing information, a 17th case will be prosecuted.  The defendent, Louis Gay, has gone public about his experiences which can be seen on his blog and in the video below. All charges were finally dropped against Louis Gay in February 2013. http://louisgay72.blogspot.no/2013/02/today-case-against-me-for-oral-sex-was.html 

Given that there are an estimated 4,627 people living with (diagnosed) HIV in Norway (Source: Norwegian Institute of Public Health), this places Norway 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: 

(2012) Kirsten M. Been Dahl, Secretary to Norwegian Law Commission on penal code and communicable diseases hazardous to public health

(2008) Inger-Lise Hognerud on behalf of HivNorge.

HivNorge

HIV Manifesto

Further reading: 

The Commission's mandate is attached below.

To learn more about Louis Gay and his ongoing fight for justice visit his blog (L.G. POZ) at louisgay72.blogspot.com

Other cases and latest news can be found at: http://criminalhivtransmission.blogspot.com/search/label/Norway

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. No HIV test result is required to enter the country. 

Foreigners with a known HIV infection are not subject to specific residence regulations. Persons who stay in Norway for longer than 3 months are offered a tuberculosis test and an HIV test, in order to arrange for any necessary treatment as quickly as possible. 

HIV infection is not grounds for deportation. 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: Recognized on national level

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