Sweden

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[Feature] Beyond Blame: Challenging HIV Criminalisation

01 Oct 2014
Beyond Blame: Challenging HIV Criminalisation A pre-conference meeting for AIDS 2014 In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together … More

Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

25 Sep 2014
Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had … More

Outrage HIV Justice Film Festival debuts at AIDS 2014 in Melbourne, first ever film festival to focus on HIV criminalisation

30 Jun 2014
In the lead-up to AIDS 2014, ten powerful thought-provoking films from seven countries over three days (18, 19 and 21 July 2014) will outrage Melbourne film-goers by exploring how laws and policies aimed at controlling, punishing or disempowering specific groups … More

Sweden: 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

29 Oct 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 … 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 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

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

Sweden: Majority of MPs want to reform HIV disclosure obligation and ‘HIV exposure’ criminal liability

04 Oct 2012
Two articles commemorating 30 years of HIV in Sweden in Svenska Dagbladet by journalist Tobias Brandel suggest that public – and political – opinion is being positively impacted by a two-year campaign by RFSU (the Swedish Association for Sexuality Education), … More

Sweden: Latest HIV non-disclosure prosecution highlights why Sweden’s “nanny state” is getting it so wrong

18 Apr 2012
Last week a 31-year-old woman, previously found guilty of attempted aggravated assault for having unprotected sex with her male partner without disclosing her HIV-positive status, was sentenced by the Falun District Court to 18 months in prison.  The man has … More

Sweden: Gay doctor convicted of HIV exposure has sentenced reduced (update)

10 Apr 2012
Update: 10th April 2012 An HIV-positive doctor who was previously convicted for ‘reckless endangerment’ for having had unprotected sex (see below) has had his sentence reduced by the Stockholm Court of Appeal, according to a brief report at DN.se. Originally … 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

Global: Powerful personal testimony and video highlight criminalisation concerns

30 Nov 2010
IPPF (the International Planned Parenthood Association) has been campaigning against the criminalisation of HIV non-disclosure, alleged exposure and non-intentional transmission for the past few years, and this World AIDS Day they are highlighting their ‘Criminalise Hate Not HIV’ Campaign. They … More

Sweden: 20 year-old man gets another eight months for second HIV exposure conviction

13 Oct 2009
The 20 year-old Linköping man previously sentenced to two years in prison in 2008 for having unprotected sex without disclosure with seven women aged 17-25 and arrested last month for having unprotected sex without disclosing his HIV-positive status to a … More

Last reviewed 01 June 2017

Country overview

The Communicable Diseases Act obliges people living with HIV to disclose before sex.

 A 2004 Supreme Court ruling established that only sex with a condom can prevent a prosecution for HIV ‘exposure’ (as reckless endangerment) or transmission (as grievous bodily harm'). Disclosure is required in any situation where someone might be placed at risk but disclosure is not a defence to exposure or transmission allegations. Therefore all condomless sex by people living with HIV is potentially a crime.

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: Yes

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 60

At least 60 since the first prosecution in 1988. The last reported conviction was in December 2015. Lindqvist O. Hiv-smittad kvinna döms för oskyddat sex (HIV - infected woman sentenced for unprotected sex). Unt.se, 8 December 2015. http://www.unt.se/uppland/uppsala/hiv-smittad-kvinna-doms-for-oskyddat-sex-4015050.aspx

Convictions

Number of convictions 50

Minimum, At least one acquittal, Oct 2013. Sweden: 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 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 Does not include 100+ more people living with HIV who have been forcibly detained and isolated under the Communicable Diseases Act. 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 under the Act has only been applied in a few cases.

Laws

Applicable laws

Brottsbalk 1962:700 (kapitel 3. §§ 5, 6, 8 and 9 & kapitel 23. §1)

The Swedish Penal Code 1962:700, Chapter 3 On Crimes against Life and Health, Sections 5-9 and Chapter 23. Chapter 23, On Attempt, Preparation, Conspiracy and Complicity, Section 1.

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

Applicable key wording

The Swedish Penal Code 1962:700, Chapter 3 On Crimes against Life and Health, Sections 5, 6, 8 and 9 and Chapter 23. On Attempt, Preparation, Conspiracy and Complicity, Section 1.

 

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.

 

Brottsbalk 1962:700 (kapitel 3. §§ 5, 6, 8 and 9 & kapitel 23. §1)

3 kap. Om brott mot liv och hälsa

5 § Den som tillfogar en annan person kroppsskada, sjukdom eller smärta eller försätter honom eller henne i vanmakt eller något annat sådant tillstånd, döms för misshandel till fängelse i högst två år eller, om brottet är ringa, till böter eller fängelse i högst sex månader. Lag (1998:393).

 6 § Är brott som i 5 § sägs att anse som grovt, skall för grov misshandel dömas till fängelse, lägst ett och högst tio år.

 Vid bedömande huruvida brottet är grovt skall särskilt beaktas, om gärningen var livsfarlig eller om gärningsmannen tillfogat svår kroppsskada eller allvarlig sjukdom eller eljest visat särskild hänsynslöshet eller råhet. Lag (1988:2).

 8 § Den som av oaktsamhet orsakar annan person sådan kroppsskada eller sjukdom som inte är ringa, döms för vållande till kroppsskada eller sjukdom till böter eller fängelse i högst sex månader.

Är brottet grovt, döms till fängelse i högst fyra år. Vid bedömande av om brottet är grovt skall särskilt beaktas

1. om gärningen har innefattat ett medvetet risktagande av allvarligt slag, eller

2. om gärningsmannen, när det krävts särskild uppmärksamhet eller skicklighet, har varit påverkad av alkohol eller något annat medel eller annars gjort sig skyldig till en försummelse av allvarligt slag. Lag (2001:348).

 9 § Utsätter någon av grov oaktsamhet annan för livsfara eller fara för svår kroppsskada eller allvarlig sjukdom, dömes för framkallande av fara för annan till böter eller fängelse i högst två år.

 

23 kap. Om försök, förberedelse, stämpling och medverkan till brott

1 § Har någon påbörjat utförandet av visst brott utan att detta kommit till fullbordan, skall han i de fall särskilt stadgande givits därom dömas för försök till brottet, såframt fara förelegat att handlingen skulle leda till brottets fullbordan eller sådan fara endast på grund av tillfälliga omständigheter varit utesluten.

   Straff för försök bestämmes högst till vad som gäller för fullbordat brott och må ej sättas under fängelse, om lägsta straff för det fullbordade brottet är fängelse i två år eller däröver.

 

Communicable Disease Act 2 (revised 2004), 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.

 

Communicable Disease Act 2 (revised 2004), 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.

Discussion

Despite the fact that Sweden does not have an HIV-specific law, it is likely that it has prosecuted more people living with HIV per capita for sexual HIV exposure or transmission than any other country in the world. The history of criminalization is long, including:

·         Public health laws which require all HIV-positive individuals to disclose their status to sexual partners and practise safer sex. These have been used to forcibly isolate at least 100 people living with HIV. In 2005 the European Court of Human Rights held that Sweden had violated the right to liberty and security of an HIV-positive man forcibly detained for up to seven years.

·         Under Criminal Law. people living with HIV are mandated to disclose their HIV status before sex, but disclosure is only an affirmative defence in HIV-exposure cases and not in cases where transmission is alleged. The maximum sentence is two years for HIV exposure and ten years for HIV transmission, the average sentence being five to seven years, with additional damages, and deportation for non-nationals. In 2008, the Swedish Institute for Infectious Disease Control announced it would no longer assist the police in investigations of alleged HIV exposure or transmission, although it later retracted its statement. Bernard EJ Sweden: Health Agency Criticised for not co-operating with Police. Criminal HIV Transmission, 28 October 2008.

·         In June 2009, HIV Sweden held a one-day symposium, HIV and Criminal Law, featuring a keynote speech by Justice Edwin Cameron of the Constitutional Court of South Africa.

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

1.      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.

2.      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.

3.      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.

·         Following the 2011 campaign to review the application of the criminal law relating to HIV by the above three civil society organisations, the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy issued the 'Swedish statement' on sexual HIV risk in 2013 (see Further reading: Sweden: Court of Appeal acquits ‘HIV exposure’ case, recognises National Board of Health and Welfare endorsement of ‘Swiss statement). This has impacted a few lower court judgements, and allowed clinicians to individualise how they counsel their patients, although the Supreme Court still considers condoms to be the only way to avoid an HIV exposure prosecution.

·         There is growing political interest in revising the obligation to disclose in the Communicable Diseases Act for people living with HIV, since more than 90% of those diagnosed are on fully suppressive treatment. Personal correspondence with Andreas Berglöf, Programme Officer - Public Policy and Advocacy, RFSU (see Further reading: Edwin J Bernard and Sally Cameron).

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=213&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Lindqvist O. Hiv-smittad kvinna döms för oskyddat sex (HIV - infected woman sentenced for unprotected sex). Unt.se, 8 December 2015. http://www.unt.se/uppland/uppsala/hiv-smittad-kvinna-doms-for-oskyddat-sex-4015050.aspx

Sweden: 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. 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

Axel Ryning (2012). HIV och straffansvar – en kriminell sjukdom? JURM02 Examensarbete. Juridiska Fakulteten vid Lunds universitet.

http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=3350556&fileOId=3403768

HIV Sweden/RFSL/RFSU (2011). HIV Crime and Punishmenthttp://criminalisation.gnpplus.net/sites/default/files/rfsu2011_hiv_crime_and_punishment.pdf

En studie om brottmål med grund i hiv-smitta Peter Gröön, landstingsjurist Smittskydd Stockholm i samarbete med Ingela Berggren, bitr. smittskyddsläkare Smittskydd Stockholm 2009-11-06 (tidigare publicerad som preliminär rapport 2009-05-14). http://www.vardgivarguiden.se/global/05_omr%C3%A5den/smittskydd/diverse/hiv/en%20studie%20om%20brottm%C3%A5l%20med%20grund%20i%20hiv-smitta.pdf

HIV-Sweden’s conference on HIV and Criminal Law June 9th 2009 World Trade Center, Stockholm. http://criminalisation.gnpplus.net/sites/default/files/HIV%20and%20Criminal%20Law_LoRes-1.pdf

Gröön and Leijonhufvud (2009). Hiv och straffansvar – en ouppklarad problematik. [HIV and criminal liability: an unresolved problem'] Svensk Juristtidning. http://svjt.se/svjt/2009/609

Case of Enhorn v. Wweden (Application no. 56529/00). European Court of Human Rights. Judgment Strasbourg. 25 January 2005. http://www.manskligarattigheter.se/dm3/file_archive/050901/499ff6db62df48681ea6a1e5b3589ae8/CASE%20OF%20ENHORN.%20SWEDEN.doc

European Court of Human Rights. Press release issued by the Registrar Chamber Judgement - Enhorn v. Sweden. 25.01.2005. https://wcd.coe.int/ViewDoc.jsp?p=&id=828639&Site=COE&direct=true

Cases

Overview

Public Health Law Cases

In the 2005 case of Enhorn v  Sweden at the European Court of Human Rights, the Court found that Sweden had unlawfully isolated a man with HIV (under public health laws) for a total of seven years, a violation of Article 5 § 1 Right to liberty and security of person. See Further reading.

Note that 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 under the Act has only been applied in a few cases. The Criminalisation Scan respondents still estimated that in 2012 that 100+ people living with HIV had been forcibly detained and isolated under the Communicable Diseases Act.


Criminal Law Cases

A 2004 Supreme Court ruling established that only sex with a condom can prevent a prosecution for HIV ‘exposure’ (as reckless endangerment) or transmission (as grievous bodily harm'). Disclosure is required in any situation where someone might be placed at risk but disclosure is not a defence to exposure or transmission allegations. Therefore all condomless sex by people living with HIV is potentially a crime. This key case known as 'Christian' was heard by the Supreme Court in 2004 [NJA 2004 p. 176]. Christian, diagnosed HIV-positive in 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  both lower and appeal courts appear not to always follow the precedent set by 'Christian', finding that since 2004, not all cases involving unprotected sex without disclosure (but with an undetectable viral load) have been judged equally. (See Further reading: HIV och straffansvar – en ouppklarad problematik).

On 29 October 2013, the Court of Appeal for Skåne and Blekinge 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. Court of Appeal in acquitting the man of HIV exposure charges recognised the National Board of Health and Welfare endorsement of the ‘Swiss statement’. See Further reading.

The exact numbers of cases in Sweden is difficult to know.  However, there have been at least 60 since the first prosecution in 1988 with the last reported conviction in December 2015. In 2005, the Criminalization Scan reported that there had been at least 30 convictions between 1992 and 2004.  It was subsequently discovered that the first prosecution took place in 1988.  A 2009 study by Peter Gröön and Ingela Berggren found a further 17 cases between 2004 and 2008. Although HIV Sweden had previously estimated there had been at least 49 cases by July 2010, HIV Sweden/RFSL/RFSU (2011). HIV Crime and Punishment noted in December 2011 that:

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.

 However, what was reported by the Criminalisation Scan in 2008, appeared to still be the case in 2012, namely that:

  • 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.
  • Respondent organisations working on the issues are primarily informed by the media of cases coming to court.

Consequently, as in 2008, the Criminalisation Scan respondents still estimated that in 2012 the minimum number of cases in Sweden was 50 By 2016, at least 60 people have been prosecuted, the last reported conviction was in December 2015. 


Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017