Norway

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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 toolkit: How to advocate for prosecutorial guidelines

30 May 2013
New guidance from UNAIDS to limit the overly broad use of criminal laws to regulate and punish people living with HIV who are accused of HIV non-disclosure, exposure and/or transmission, recommends that: Countries should develop and implement prosecutorial and police … More

Norway: National Association of People Living with HIV responds to Norwegian Law Commission report

23 Jan 2013
Yesterday was the deadline for written responses to the Norwegian Law Commission report which shocked and disappointed HIV and human rights advocates in Norway and around the world on its release last October. After spending almost two years examining every … More

Norway: Dissenting Law Commission member, Kim Fangen, ‘stands alone’

25 Oct 2012
Last week’s publication of the Norwegian Law Commission’s disappointing report was “a crucial moment for us in Norway – actually for all HIV activists in the Nordic countries,” says Kim Fangen, the only member of the Commission to vote against … 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

Norway: Long awaited Law Commission report disappoints

22 Oct 2012
The long-awaited report from the Norwegian Law Commission, released last Friday, has shocked and disappointed HIV and human rights advocates in Norway and around the world. After spending almost two years examining every aspect of the use of the criminal … More

Norway: First gay man to be prosecuted goes public, makes a real difference (corrected)

27 Apr 2012
Correction: Louis Gay tells me that he is not the first gay man to be prosecuted in Norway. I am the first one to be prosecuted for practicing “safer sex” (oral sex, only. with no condom and no contact with … More

Norway: Prof. Matthew Weait delivers stirring clarion call to recognise harm of HIV criminalisation

17 Apr 2012
Yesterday Professor Matthew Weait, Professor of Law and Policy at Birkbeck College, University of London delivered a stirring lecture to the public health professionals involved in implementing Norway’s HIV strategy.  As Norway is currently reconsidering its criminal code as it … 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

Sweden: Campaign to change draconian, punitive policies for PLHIV aiming for Government review

11 Dec 2011
In Sweden, the Communicable Diseases Act requires people with diagnosed HIV to disclose in any situation where someone might be placed at risk and to also practise safer sex (which, in Sweden, means using condoms – the impact of treatment … 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

Tell your story – how are you impacted by HIV criminalisation?

04 Aug 2011
Understanding the unintended impacts of the criminalisation of HIV exposure or transmission – way beyond the relatively few individuals who are accused, arrested and/or prosecuted – can play a crucial part in advocating against such laws and prosecutions. Over the … More

UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”

27 Apr 2011
A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission … More

Norway: HIV advocates call for repeal of HIV criminalisation law

23 Jan 2009
A group of Norweigian advocates known as HIV Manifesto are calling for the Norwegian government to repeal Section 155 of the Norwegian penal code, a 1902 infectious disease law that has only ever been used to criminalise HIV transmission. The … More

Last reviewed 01 June 2017

Country overview

Currently Norwegian Penal Code, 1902. Part II. Crimes. 14th Chapter. General Dangerous Crimes. § 155, which criminalises all condomless sex by people living with HIV, regardless of risk, even if disclosure occur, is in force.  Penal Code, Amendments of 2005. Another part. The criminal offenses, Chapter 23. Protection of public health and the environment. Sections 237 and 238 were passed to replace §155 in 2005, but are currently not in force. The coming into force of these sections was dependent of the findings of the Norwegian Law Commission on the penal code and communicable diseases hazardous to public health. In October 2012, the Law Commission delivered its disappointing findings. Following their publication, advocacy has focused on garnering political support for law reform as well as a more nuanced understanding of risk in the era of antiretroviral therapy.

Specific laws

Specific law enacted Yes

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 17

17 HIV-related cases since 1999 (with one historic case from 1930 regarding venereal disease); convictions in all cases except: 1. One where the first instance judgment was found incorrect by the appellate court and is supposed to be considered again by the first instance court. 2. The 17th case was brought against, Louis Gay, who went public about his experiences. All charges were finally dropped in February 2013 (see Further reading).

Convictions

Number of convictions 15

17 HIV-related cases since 1999 (with one historic case from 1930 regarding venereal disease); convictions in all cases except: 1. One where the first instance judgment was found incorrect by the appellate court and is supposed to be considered again by the first instance court. 2. The 17th case was brought against, Louis Gay, who went public about his experiences. All charges were finally dropped in February 2013 (see Further reading).

Laws

Applicable laws

Almindelig borgerlig Straffelov (Straffeloven), 1902. Anden Del. Forbrydelser. 14de Kapitel. Almenfarlige Forbrydelser. § 155:

Norwegian Penal Code, 1902. Part II. Crimes. 14th Chapter. General Dangerous Crimes. § 155 (unofficial translation), §§ 21-23 concern the degree of culpability required i.e. intent, negligence)

 

Lov om straff (straffeloven). Annen del. De straffbare handlingene, Kapittel 23. Vern av folkehelsen og det ytre miljø. Sections 237 and 238 (not in force)

Penal Code, Amendments of 2005.  Another part . The criminal offenses , Chapter 23. Protection of public health and the environment. § 237 and § 238 (not in force) 

Applicable key wording

Norwegian Penal Code, 1902. Part II. Crimes. 14th Chapter. General Dangerous Crimes. § 155 (unofficial translation):

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.


Almindelig borgerlig Straffelov (Straffeloven), 1902. Anden Del. Forbrydelser. 14de Kapitel. Almenfarlige Forbrydelser§ 155.

Den som med skjellig grunn til å tro at han er smitteførende med en allmennfarlig smittsom sykdom, forsettlig eller uaktsomt overfører smitte eller utsetter en annen for fare for å bli smittet, straffes med fengsel inntil 6 år ved forsettlig overtredelse og med fengsel inntil 3 år ved uaktsom overtredelse. Medvirkning straffes på samme måte. Er fornærmede den skyldiges nærmeste, finner offentlig påtale bare sted etter fornærmedes begjæring med mindre allmenne hensyn krever det.

§§ 21-23 concern the degree of culpability required i.e. intent, negligence http://www.lovdata.no/all/tl-20050520-028-004.html#21)


Penal Code, Amendments of 2005.  Another part . The criminal offenses , Chapter 23. Protection of public health and the environment. § 237 and § 238 (not in force) (unofficial translation):

Section 237 Transmission. 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. 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.

 

Lov om straff (straffeloven). Annen del. De straffbare handlingene, Kapittel 23. Vern av folkehelsen og det ytre miljø. Sections 237 and 238 (not in force)

§ 237. Smitteoverføring

Med bot eller fengsel inntil 3 år straffes den som overfører smitte eller utsetter en annen person for fare for å bli smittet av en allmennfarlig smittsom sykdom.

 Straff kommer ikke til anvendelse når den som er blitt smittet av en seksuelt overførbar sykdom eller utsatt for slik smittefare er ektefelle eller samboer med den som har overført smitte eller utsatt vedkommende for smittefare, og ektefellen eller samboeren på forhånd har samtykket i å bli utsatt for slik fare.

Uaktsom smitteoverføring straffes med bot eller fengsel inntil 1 år.

 Tilføyd ved lov 19 juni 2009 nr. 74.

 

§ 238. Grov smitteoverføring

Grov smitteoverføring straffes med fengsel inntil 6 år. Ved avgjørelsen av om smitteoverføringen er grov skal det særlig legges vekt på om den har medført

 a) allmenn utbredelse av sykdommen eller fare for slik utbredelse, eller

 b) tap av liv eller betydelig skade på kropp eller helse.

Uaktsom grov smitteoverføring straffes med fengsel inntil 3 år.

Tilføyd ved lov 19 juni 2009 nr. 74.

 


Discussion

Currently §155, which criminalises all condomless sex by people living with HIV, regardless of risk, even if disclosure occur, is in force.  Sections 237 and 238 were passed to replace §155 in 2005, but are currently not in force. There coming into force was dependent of the findings of the Norwegian Law Commission on the penal code and communicable diseases hazardous to public health. In October 2012, the Law Commission delivered its disappointing findings. Following their publication, advocacy has focused on garnering political support for law reform as well as a more nuanced understanding of risk in the era of antiretroviral therapy (see Further reading).

Further reading

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

Latest cases and news can be found at: http://www.hivjustice.net/site/news/?country=168&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Almindelig borgerlig Straffelov (Straffeloven), 1902. Anden Del. Forbrydelser. 14de Kapitel. Almenfarlige Forbrydelser. 

§ 155. https://lovdata.no/dokument/NLO/lov/1902-05-22-10/KAPITTEL_2#KAPITTEL_2

§§ 21-23 concern the degree of culpability required i.e. intent, negligence http://www.lovdata.no/all/tl-20050520-028-004.html#21

Lov om straff (straffeloven). Annen del. De straffbare handlingene, Kapittel 23. Vern av folkehelsen og det ytre miljø.§ 237 and § 238 (not in force). https://lovdata.no/dokument/NLO/lov/1902-05-22-10/KAPITTEL_2#KAPITTEL_2

Are Vogt Muem. Kraftfull appell for avkriminalisering av hiv-positive. Utrop. 24 September 2014. http://www.utrop.no/Nyheter/Innenriks/27847

Time Dommerud. Vil ikke lenger straffe HIV-positive som er under behandling. Aftenposten. 1 December 2014. http://www.aftenposten.no/helse/Vil-ikke-lenger-straffe-HIV-positive-som-er-under-behandling-7804247.html

Norway: Long Awaited Law Commission Report Disappoints. Edwin J Bernard, 22 October 2012. http://www.hivjustice.net/news/norway-long-awaited-law-commission-report-disappoints/

NOU 2012: 17. Om kjærlighet og kjøletårn — Strafferettslige spørsmål ved alvorlige smittsomme sykdommer. Utredning fra et utvalg oppnevnt ved kongelig resolusjon 3. desember 2010. Avgitt til helse- og omsorgsministeren 19. oktober 2012. https://www.regjeringen.no/no/dokumenter/nou-2012-17/id704855/?ch=1&q=

English Summary: NOU 2012: 17. About love and cooling towers - Criminal justice issues by serious infectious diseases. Report from a committee appointed by Royal Decree 3 December 2010. Submitted to Health and Human Services Minister on October 19, 2012. https://www.regjeringen.no/no/dokumenter/nou-2012-17/id704855/

Louis Gay Blog. http://louisgay72.blogspot.no/

No trial after all. Louis Gay, 14 February 2013. http://louisgay72.blogspot.ch/

Louis Gay describes his experiences with HIV criminalisation in Norway (2012). https://vimeo.com/37664946


Cases

Overview

According to the Secretary to the Commission, Kirsten M. Been Dahl, in 2012, 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. As some cases have been to appeal, 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 1930 case). In addition, there are examples where transmission of or exposure to HIV or other STIs has been a factor in the sentencing for crimes including rape, sex with a minor etc. even when there has not been a prosecution under Section 155.

 To date there have been 17 known prosecutions:

1.       First in 1999.

2.       Between 2004 and 2008, there were ten prosecutions.

3.       Between 2008 and 2012:

    • There were not only HIV-related prosecutions but also a few hepatitis C-related prosecutions (alone or together with HIV).
    • Prosecutions for sex between men began (prior to 2008, all prosecutions were heterosexual sex-related).
    • There were prosecutions in Oslo (prior to 2008, all prosecutions were in locations outside the capital city).

4.       The 17th case was brought against, Louis Gay, who went public about his experiences. All charges were finally dropped in February 2013 (see Further reading).

 

Of the 17 cases since 1999 (with one historic case from 1930 regarding venereal disease); convictions in all cases except:

1.       One where the first instance judgment was found incorrect by the appellate court and is supposed to be considered again by the first instance court .

2.       The 17th case was brought against, Louis Gay, who went public about his experiences. All charges were finally dropped in February 2013 (see Further reading).

 

Notes:

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 longest prison sentence: 5 years, the two shortest: 120 days and six months, respectively. In all cases, three months were suspended (except the 1930 case: 90 days imprisonment).

Cases in which prosecution took place under section 155 along with prosecution for additional other crimes which will have influenced the sentence:

1.       Rape or sex with minors, and sometimes also other forms of violence or other crimes: 7 cases (6 convictions).

2.       Two (2) cases related only to hepatitis C

3.       One (1) case HIV and hepatitis C,

4.       Four (4) cases only HIV

The cases mainly involved exposure without infection, with infection in at least one of the hepatitis C cases.

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017