Swiss Penal Code: Articles 122 and 231
Revision of laws: The Swiss Federal Supreme Court has ruled that HIV infection may no longer be automatically considered a serious assault, due to improved outcomes in life-expectancy on antiretroviral therapy.
In a recent ruling, the Swiss Federal Supreme Court revisited its long standing jurisprudence on the severity of an HIV infection. Since 1999 (BGE 116 IV 125), any transmission or attempted transmission of HIV has been deemed to inflict or attempt to inflict severe harm and qualifies thus as an offence under article 122 of the Swiss Criminal Code relating to serious assault.
The appellant had appealed his conviction by the Superior Court of the Canton of Zurich under both article 122 and article 231 of the criminal code pertaining to transmission of human diseases for transmitting HIV to a sexual partner. The Superior court had imposed a 30 month partially suspended custodial sentence.
In the third part of his appeal, the appellant objected to the qualification of transmission of HIV as a serious injury on the grounds that, although still an incurable chronic medical condition, HIV infection is well managed thanks to current medical treatment. Life expectancy of individuals living with HIV is now nearly equal to those of persons not infected and as a result of this progress transmission should only qualify as common assault under article 123 of the criminal code.
The Federal Court agreed with the appellant to the extent that recent scientific progress and current treatment options lead to the conclusion that HIV infection does not necessarily constitute a serious threat to life. The Court nevertheless held that HIV infection still causes complex and life-long physiological and psychological changes which in some cases may lead to serious or even life threatening harm.
The ruling in effect overruled the Federal Court’s own jurisprudence that held that HIV infection is a serious injury that qualifies as serious assault and allows a finding of serious assault only if the facts of the case warrant. It thus imposes a duty on lower courts to determine in every case brought before them whether the transmission or attempted transmission qualifies as common assault under article 123 or rather as serious assault under article 122 of the criminal code.
Serious assault is punishable with a custodial sentence not exceeding 10 years, whereas the maximum sentence for common assault is 3 years. The courts reversal will certainly limit some sentences to the maximum of 3 years for common assault whereas the average sentence for HIV transmission or attempted transmission had previously varied from 2 to 4 years in cases where 122 and 231 were applied concurrently.
As opposed to serious assault which is prosecuted ex officio (without complaint), common assault is prosecuted ex officio only for those exceptions provided in paragraph 2 of article 123 that cover use of poison or weapons, assault on persons in the care of the accused or unable to defend themselves and finally assault on spouses, registered partners or cohabitating partners.
The Federal Court rejected the appellant’s other contentions that the lower court had arbitrarily rejected the appellant’s defence invoking the victim’s consent to unprotected sexual relations as well as that the Court had erred in determining that the appellant was indeed the person who infected the victim. The Court did not follow the appellant’s argument there was sufficient doubt as to the victim’s testimony to benefit the accused.
The case is remanded to the Superior Court for a fresh determination whether the conduct in question may be qualified as common or serious assault.
Art. 122 of the Swiss Penal Code: Grievous bodily harm
Anyone who intentionally injures a person in a life-threatening way, anyone who mutilates a body, an important organ or a limb or who makes an important organ or limb of a human being useless, anyone who makes a person incapable of working, fragile, or insane, anyone who deforms a human being's face in a severe and permanent way. Anyone who causes intentionally another grievous injury to a human being's body or his/her physical or mental health shall be punished with penitentiary or prison from six months up to five years.
Art. 231 of the Swiss Penal Code: Spreading of human diseases
The latest draft of the revised Art. 231 (as of March 2012) currently reads:
In July 2008, Switzerland's highest court - the Federal Court in Lausanne - ruled that a man who was unaware of his infection at the time his female partner acquired HIV was still criminally liable for her infection because he should have made her aware of his prior 'risky' sexual history.
(More information on this case can be found at Criminal HIV Transmission)
In February 2009, in the first ruling of its kind in the world, the Geneva Court of Justice quashed an 18-month prison sentence given to a 34-year-old HIV-positive African migrant who was convicted of HIV exposure by a lower court in December 2008, after accepting expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that his risk of HIV exposure during unprotected vaginal sex whilst on effective antiretroviral treatment was so low as to be purely hypothethical. The deputy prosecutor himself welcomed the acquittal, stating: "One should not convict people for hypothetical risks." In July 2009, the Federal Court in Lausanne confirmed the acquittal, but shied away from explicitly discussing the link between an undetectable viral load and risk of transmission, effectively lacking the courage to change the law on HIV exposure throughout Switzerland.
An extensive study of all HIV-related criminal cases in Switzerland between 1990 and 2009 (see original in German and summary in English attached below) found 39 individual cases dealt with in 51 separate cantonal (lower and higher) and federal court hearings. There were convictions in 26 cases.
Three cases did not involve sex. One case involved a doctor who disclosed the HIV-positive status of one of his patients; another case involved the Red Cross and contaminated blood; and the third one involved biting.
The remaining 36 cases involved sex - 31 heterosexual sex, and five sex between men. All but three of these 36 sexual cases involved consensual sex (as opposed to rape or sexual assault). In more than half of the convictions there was no alleged HIV transmission.
In 21 cases, § 231 (spreading of dangerous diseases) was used. This law does not allow for a disclosure defence.
Most prison sentences ranged between 18 months and 4 years, plus a fine of up to CHF 80,000 as compensation to the 'victims'. The report authors point out that these sentences are longer than for other (non-HIV-related) 'crimes' charged under either §122 and/or §231.
Of the 27 accused where country of origin was known, 11 were born in African countries; 9 were born in Switzerland; 4 were born elsewhere in Europe; 2 were born in Asia and the near East; and one was born in the US.
(Futher English-language analysis of the entire 149 page German-language report, 'Strafrechtlicher Umgang bei HIV/Aids in der Schweiz im Lichte der Anliegen der HIV/Aids-Prävention' by Kurt Pärli and Peter Mösch Payot, can be found at Criminal HIV Transmission)
Since the publicaton of this report, although we are aware of several ongoing cases (and possibly convictions that are unreported) only one further conviction (in March 2012) has been reported in the media. In this case, a higher court revisited the original sentence (3 years, two suspended) handed down to a woman with HIV who was originally convicted of infecting two men whilst she was still undiagnosed, following an appeal. The higher court agreed that both men were likely infected prior to the woman's own diagnosis, but still gave her a 2 year suspended sentence because she continued to have unprotected sex with them without disclosing. This despite her testimony that she had asked them to use condoms but they refused. (See reports in German at Tages Anzieger and Neue Zürcher Zeitung)
In March 2012, the Swiss Federal Assembly's National Council (lower house) revisions to the Law on Epidemics was passed with a last minute amendment by Green MP Alec von Graffenried that only criminalises the intentional spread of a communicable disease. The bill must now go through the Health Commission of the Council of States (upper house), before it goes to a final vote, and there may still be further amendments before the Law on Epidemics is finalised in the second half of 2012.
(More information on the history of the revisions, von Graffenried's speech to the lower house, and the latest news on the revised Law on Epidemics can be found at Criminal HIV Transmission)
Given that there are an estimated 25,000 people living with (diagnosed) HIV in Switzerland, prosecutions per capita of PLHIV are estimated to be 1.6 per 1000.
The University of Applied Sciences Northwest Switzerland and AIDS-Hilfe Schweiz have a website, http://www.hivlaw.ch, that includes a database of all known HIV-related criminal cases in Switzerland.
Latest cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/Switzerland
Foreigners with a known HIV infection or who are living with AIDS are not subject to specific residence regulations.
Foreigners who come to work in Switzerland for the first time are subject to the regulations about sanitary measures at the border (...). No HIV testing is performed during this examination. EU and EFTA nationals are not subject to this medical examination anyway (the screening is mainly performed to recognise cases of tuberculosis).
Applicants for asylum are not tested for HIV on entry either. However, the medical examination mentioned above is performed on them.
Antiretroviral medication can be imported for personal use. It is recommended to carry a prescription.
For updated information, please go to: www.hivrestrictions.org
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