The rise of prosecutions in high-income countries

Other wealthy countries with low overall HIV prevalence soon found themselves wrestling with similar policy options, with similarly wide variation in legal and policy responses.

The world’s first known conviction of a person for unprotected consensual sex without disclosure of his HIV-positive status occurred in the former West Germany (now the Federal Republic of Germany) in 1987. The case involved a 46-year-old American civilian who worked as a cook at a United States army base in Nuremburg, Bavaria. The defendant had acknowledged having sexual intercourse with at least three other men after learning that he was HIV-positive, but denied he intended to harm anyone. He received a two-year prison sentence “for attempting to inflict ‘grievous bodily harm’ by practicing unprotected sex.”¹  Of note, the man’s arrest had immediately followed “the widely publicized announcement of stiff measures against the spread of the AIDS virus in the southern state of Bavaria.”¹

Beginning in 1989, Canada used existing criminal laws to prosecute HIV-positive people for having otherwise consensual sex without disclosing their HIV status, with charges including criminal negligence causing bodily harm; common nuisance; assault; administering a noxious thing; and attempted murder.²  The number of prosecutions increased substantially following a 1998 Supreme Court ruling that if an HIV-positive person does not disclose his or her status before engaging in otherwise consensual sexual conduct that poses a ‘significant risk’ of HIV transmission, then the partner’s consent is invalid, thereby rendering the sex an assault in law.³

Early prosecutions in Australia reveal a complex pattern. Nine of the twelve known cases between 1991 and 2001 occurred in Victoria (one of eight jurisdictions), with one charge laid in each of three other states/territories. The first two known charges (‘reckless endangerment’) were laid against two sex workers (a man and a woman) but charges were dropped immediately before the committal hearing.

Possibly the world’s first-ever murder conviction for sexual HIV transmission took place in Italy in 2000, when an Italian man was found guilty of ‘culpable homicide’ for infecting his wife who subsequently died. There are no details regarding how the court proved his state of mind or whether he pleaded guilty or was found guilty following a trial. He was sentenced to 14 years in prison.

The next person was charged in 1993 for having unprotected sex without disclosing his HIV status. The defendant died between the committal hearing and the trial.⁴ Subsequent prosecutions, all relating to unprotected sex without disclosure, also “went unrealised or were overturned (but resulted in considerable media and public resentment), basically as a result of the low risk of transmission associated with individual sexual encounters.”⁵ The first conviction was obtained in 1998.⁶ The defendant was a 52-year-old bisexual man who was found guilty of having oral and anal sex with three men, two of whom tested HIV-positive. He committed suicide in prison.

By 2005, at least 36 European countries had either HIV-specific criminal laws or had used existing criminal laws to prosecute HIV exposure or transmission, and 21 had successfully prosecuted at least one person. However, just three European countries – Austria, Sweden and Switzerland – accounted for more than 60% of the total convictions, each having prosecuted more than 30 people living with HIV with cases starting in 1990, 1992 and 1998, respectively. Prosecutions in Europe were primarily for non-coercive sexual exposure or transmission.⁷