Sweden

Last updated on: 6 February 2014

Criminalisation of HIV transmission/exposure

Sweden
Whether Specific law enacted: 
No
Number of people prosecuted: 
Min. 50
Number of people convicted: 
Min. 50. At least one acquittal, Oct 2013.
Applicable law: 

The Swedish Penal Code 1962 (enacted 1965) Chapters 3 and 23.

The Communicable Disease Act (revised 2004) Chapters 2 and 4.

Key wording in the law: 

The Swedish penal code 1962:700 (Chapter 3 & 23)

Chapter 3, On Crimes against Life and Health

Section 5

A person who inflicts bodily injury, illness or pain upon another or renders him or her powerless or in a similar helpless state, shall be sentenced for assault to imprisonment for at most two years or, if the crime is petty, to a fine or imprisonment for at most six months. (Law 1998:393)

Section 6

If the crime referred to in Section 5 is considered gross, the sentence for gross assault shall be imprisonment for at least one and at most ten years. In assessing if the crime is gross special consideration shall be given to whether the act constituted a mortal danger or whether the offender inflicted grievous bodily harm or severe illness or otherwise displayed particular ruthlessness or brutality. (Law 1988:2)

Section 8

A person who through carelessness causes another to suffer bodily injury or illness not of a petty nature, shall be sentenced for causing bodily injury or illness to a fine or imprisonment for at most six months. (Law 1999:36) If the crime is gross, imprisonment for at most four years shall be imposed. If the act was committed by driving a motor vehicle, special consideration shall be given, in assessing whether the crime is gross, to whether the sentenced person was under the influence of alcohol or other substance. (Law 1993:1462)

Section 9

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.

Chapter 23, On Attempt, Preparation, Conspiracy and Complicity

Section 1

A person who has begun to commit a crime without bringing it to completion, shall, in cases where specific provisions exist for the purpose, be sentenced for attempt to commit crime if there was a danger that the act would lead to the completion of the crime or such danger had been precluded only because of fortuitous circumstances. Punishment for attempt shall be at most what is applicable to a completed crime not less than imprisonment if the least punishment for the completed crime is imprisonment for two years or more.

The Communicable Disease Act 2, Chapter 2

Section 2

He or she who knows that they carry a dangerous public health disease is required to provide information about the infection to other people that he or she will be in contact with such that a considerable risk of transmission may arise.

The Communicable Disease Act 2, Chapter 4

Section 2

Note: The obligations that the HIV-positive individual has to their sex partners can be found in the rules of conduct given by the attending physician who notifies the person that he or she is HIV-positive. One rule of conduct is that the individual needs to use condoms for safer sex.

Key Cases: 

The key case known as 'Christian' was heard by the Supreme Court in 2004 [nja 2004 p. 176]. Christian, diagnosed HIV-positive 1996, was charged with having had unprotected sex with eight different men without disclosing his status to seven of them. None of the men acquired HIV. He told the court he did not consider himself infectious because he had an undetecable viral load. The Court of Appeals upheld the earlier verdict of attempted aggravated assault and a three year prison sentence.  However, the Supreme Court found that the risk of HIV transmission with each incidence of sexual intercourse had, in fact, been very low and there was no indication that he had acted with negligence. Simply having sexual with a large number of partners was not, in their opinion, attempted aggravated assault. The Supreme Court nevertheless found Christian guilty of unacceptable risk taking to an unlawful degree and convicted him of reckless endangerment. His prison sentence was reduced from three years to one.

However, according to legal scholars, Gröön and Leijonhufvud ('Hiv och straffansvar – en ouppklarad problematik.' [HIV and criminal liability: an unresolved problem'] Svensk Juristtidning, 2009) both lower courts and appeal courts appear not to always follow the precedent set by 'Christian' and found that since 2004, not all cases involving unprotected sex without disclosure (but with an undetectable viral load) have been judged equally.

On January 25th 2005 the European Court of Human Rights unaminously held that Sweden had violated Article 5 section 1 (right to liberty and security) of the European Convention on Human Rights by compulosorily detaining /isolating a man with HIV for a total of seven years. The full text of the judgement can be found here.

According to HIV Sweden/RSFL/RFSU,

In 2004, a new Commu­nicable Disease Act was adopted that gave more consideration to every person’s equal worth and to the individual’s personal integrity. Since then, forced isolation has only been applied in a few cases.

From HIV Crime and Punishment, HIV Sweden/RFSL/RFSU, 2011.

Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement’, Minister for Social Affairs will consider reviewing application of law. October 29, 2013. Today, the Court of Appeal for Skåne and Blekinge has acquitted a man from Malmö previously convicted of exposing four women to HIV on the grounds that since he had a stable undetectable viral load on antiretrovirall treatment with no other STIs he could not cause danger to another person. Source: http://www.hivjustice.net/news/sweden-court-of-appeal-acquits-hiv-exposure-case-recognises-national-board-of-health-and-welfare-endorsement-of-swiss-statement/#sthash.DxqMu1BE.dpuf

 

Discussion: 

Exact numbers of cases in Sweden are difficult to know.  In 2005 we reported that there had been at least 30 convictions since 1992 and 2004.  It was subsequently discovered that the first prosecution took place in 1988.  

A study by Peter Gröön and Ingela Berggren ('En studie om brottmål med grund i hivsmitta' [A study on criminal cases with grounds in HIV transmission], Smittskydd Stockholm (The Swedish Institute for Infectious Disease Control), 6 November 2009) found further 17 cases between 2004 and 2008.

Although HIV Sweden had previously estimated there had been at least 49 cases by July 2010, a December 2011 document by HIV Sweden/RFSL/RFSU notes

Since the late 1980s, more than 40 people in Sweden have been accused and convicted of [HIV-related] crimes...What is remarkable is that many of the trials have taken place only quite recently. About half of the rulings have occurred after April of 2004, when the Supreme Court announced an indicative ruling in the case of »Christian«.Between 2004 and 2010 over 20 people were punished for having sex that carried the risk of infection, that is to say, when the person knew he or she was hiv-positive and had unprotected sex.

From HIV Crime and Punishment, HIV Sweden/RFSL/RFSU, 2011.

However, what we reported in 2008, appears to still be the case in 2012

  • Prosecutions and convictions are continuing to happen in Sweden resulting in a rate of 4/5 case a year.
  • Precise information about the number of people involved is not known as prosecutions occur under assault laws and other laws and no distinction is made between HIV cases and all the other cases prosecuted under the same umbrella heading.
  • Our respondent organisations working on the issues (see below) are primarily informed by the media of cases coming to court.

Consequently, as we did in 2008, we are still estimating that in 2012 the mimimum number of cases in Sweden is 50 (and that's not including the 100+ more people with HIV who have been forcibly detained and isolated under the Communicable Diseases Act.) 

Given that there are an estimated 8,100 people living with HIV (diagnosed and undiagnosed) in Sweden, this places Sweden as one of the top ten countries in the world for prosecutions per capita of PLHIV (6.17 per 1000).

Further reading: 

In November 2011, HIV Sweden, RFSL and RFSU launched an important new manifesto, 'HIV, Crime and Punishment' that clearly explains what the problems are for people with HIV (and public health) in Sweden and asks for three actions from the Swedish Government:

  • A review of Swedish law, including the Communicable Disease Act as well as the application of the criminal law to HIV non-disclosure, exposure and transmission.
  • An endorsement by Sweden of the 2008 UNAIDS Policy Brief on the criminalisation of HIV transmission, which says that criminal prosecutions should be limited to unusually egregious cases where someone acted with malicious intent to transmit HIV, and succeeded in doing so.
  • A renewed, clear focus of Sweden's National HIV Policy on a human rights-based approach to HIV prevention, care, support and treatment, and sex education.
  •  

in June 2009, HIV Sweden held a one-day symposium, HIV and Criminal Law, featuring a keynote speed by Edwin Cameron.  The meeting report is attached below.

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. 

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