Denmark

Lorem ipsum dolor sit amet, volutpat referrentur mel ex, eam ad dicant fabulas vituperata. Quo te civibus vivendum mediocrem. At pri mundi offendit. Vim an everti accusam consectetuer. Ceteros fabellas vix no, id impetus fastidii eam. Sonet essent ut vim, ea alia everti oblique eum, suas senserit voluptatibus sea et.

Vide partem id mei, vel ex nonumes repudiare. Et veritus admodum usu. Nec quas nobis eruditi at, ut mei utinam legere. Eum in debitis liberavisse, qui cu tollit rationibus interpretaris.

Research agenda into the public health impact of overly broad HIV criminalisation highlights five areas where researchers and advocates can collaborate

31 Jan 2014
A newly published report suggests a number of concrete ways that research into the impact of overly broad HIV criminalisation on public health can move the policy agenda forward, and help reform laws and create better policies for people living … More

EATG seeks to ensure that Europe-wide standards of up-to-date scientific evidence limit overly broad HIV criminalisation

28 Oct 2013
EATG’s new position paper on prosecutions for HIV non-disclosure, exposure and/or transmission published last week recommends that the criminal law should only be used in extremely rare and unusual cases where HIV is maliciously and intentionally transmitted and that Europe-wide … More

Video: Seminar on HIV Criminalisation, Berlin, 20 September 2012 (EATG/DAH/IPPF/HIV in Europe)

23 Oct 2012
This international conference on the criminalisation of HIV non-disclosure, potential or perceived HIV exposure and non-intentional HIV transmission took place at the Rotes Rathaus in Berlin on 20th September 2012. HIV advocates, law and human rights experts and other concerned … More

Denmark: Man convicted in 2007 under now suspended law acquitted; further cases to be reviewed

08 Aug 2012
A court in Denmark has acquitted a person living with HIV who had previously been found guilty under the country’s now-suspended HIV-specific criminal statute. The man’s sentence was reduced to six months, due to his conviction for other, drug-related, offences. … More

Denmark: Safer sex without a condom (editorial)

15 Jun 2012
Below is an excellent editorial by Henriette Laursen, director of AIDS-Fondet, and Susan Cowan, staff specialist at Statens Serum Institut, on the current state of HIV science and how it should impact the Danish Government’s deliberations on whether or not … More

Important new research project on HIV criminalisation and law reform in Nordic countries by Prof. Matthew Weait

12 Dec 2011
Following on from yesterday’s post on advocacy efforts underway in Sweden, other Nordic countries and Switzerland,  my friend and colleague, Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London is about to undertake an important new … More

Punitive Economies: The Criminalization of HIV Transmission and Exposure in Europe

14 Nov 2011
Last week, Professor Matthew Weait presented this excellent paper at The Future of European Prevention Among MSM Conference (FEMP 2011) in Stockholm, Sweden. I’ll also quote from the introduction here, but the entire paper is a must-read, and can be … More

Denmark: HIV to be removed from Article 252, but new statute wording may re-criminalise non-disclosure without “suitable protection”

10 Nov 2011
Denmark’s new Minister of Justice Morten Bødskov is now taking formal steps to remove references to HIV from Article 252 of the Danish Penal Code which means that, for the time-being, HIV exposure and transmission is decriminalised. The news was … More

Denmark: HIV criminalisation exports stigma, writes Justice Edwin Cameron

14 Jun 2011
Denmark’s leading broadsheet newspaper, Politiken, last week published an article by Justice Edwin Cameron of the South African Constitutional Court congratulating Denmarks’ recent suspension of its HIV-specific criminal statute, and asking that it considers abolishing it altogether – otherwise it … More

Denmark: (Updated) 122 NGOs endorse civil society letter congratulating Government’s suspension of HIV-specific law, asking for its abolition

31 May 2011
Update May 31st: A total of 122 civil society organisations from around the world have signed the letter which was delivered to the Danish Minister of Justice and the Danish Minister of Health in mid-May.  Thank you to everyone who … More

Denmark: Justice Minister suspends HIV-specific criminal law, sets up working group

17 Feb 2011
Denmark’s Justice Minister Lars Barfoed has today suspended Article 252 of the Criminal Code – the so-called ‘HIV law’ – pending an inquiry by a government working group to consider whether the only HIV-specific law in Western Europe should be … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted Yes

Currently suspended

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 20

Convictions

Number of convictions 15

Laws

Applicable laws

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.

Applicable key wording

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).

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).

Further reading

Latest cases and news can be found at: http://www.hivjustice.net/country/dk/

Cases

Overview

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.

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017