Northern Europe

Denmark prosecuted its first case in 1993, but the Supreme Court found in 1994 that the existing law (Section 252: “wantonly or recklessly endangering life or physical ability”) did not provide a clear legal base for conviction. The phrase “fatal and incurable disease” was added in 1994, and HIV was specified in 2001.

There have been at least 18 prosecutions: at least one failed due to the accused committing suicide. At least ten involved non-Danish nationals, including seven people of African origin. At least eleven convictions for either sexual HIV exposure or transmission are reported. The maximum prison sentence is eight years.

Two of Denmark’s foremost HIV experts, Professor Jens Lundgren and Professor Jens Skinhøj, have recently called for the law’s abolition.¹

Prior to 2004 at least two men were convicted of criminal HIV transmission under the existing Penal Code (Articles 118/119, "causing of severe health damage", and/or Article 121, "physical abuse"). One man was Egyptian and the other man Estonian. No further information regarding HIV-related prosecutions is currently available.

Finland prosecuted its first case in 1989. Both HIV exposure and transmission are prosecutable under existing assault or homicide laws. There have been at least twelve prosecutions and seven convictions, with a disproportionate number of prosecutions of foreign nationals, particularly those of African and Asian origin, including the most recent case.²

The longest prison sentence, however, was handed down to a 25-year-old Finnish male, who was sentenced to ten years in prison in 2008 for five counts of aggravated assault (for sexual HIV transmission), 14 counts of attempted aggravated assault (for sexual HIV exposure), and one count of rape. He was also ordered to pay the 21 female complainants a total of €330,000 in damages.³ A 2009 appeal increased his prison sentence to twelve years.⁴

Norway prosecuted its first case in 1991 under Section 155 of the Norwegian Penal Code. This infectious-disease law, enacted in 1902, is known as the ‘HIV paragraph’ since it has only ever been used to prosecute sexual HIV exposure or transmission. By placing the burden on HIV-positive individuals to both disclose HIV status and insist on condom use, the law essentially criminalises all unprotected sex by HIV-positive individuals even if their partner has been informed of their status and consents. There is no distinction between penalties for HIV exposure or transmission.

Both ‘willful’ and ‘negligent’ exposure and transmission are liable to prosecution, with a maximum prison sentence of six years for ‘willful’ exposure or transmission and three years for ‘negligent’ exposure or transmission. At least 14 individuals have been prosecuted – all for heterosexual sex, despite the fact that most HIV transmission in Norway is the result of sex between men – and all prosecutions have resulted in convictions.

A coalition of grass-roots and civil-society organisations in Norway is currently campaigning to abolish Section 155 during the forthcoming revision of its Penal Code.⁵

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. People living with HIV are mandated to disclose their HIV status before sex, but dislosure is only an affirmative defence in HIV-exposure cases and not in cases where transmission is alleged. There have been least 50 prosecutions and 38 convictions since the first prosecution took place in 1992. 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.⁶ In addition, public health laws 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.

A recent conference highlighted the human rights concerns of Sweden’s legal and public health policies. It heard that a disproportionate number of those convicted are from Africa; that non-nationals receive longer prison sentences; and anecdotal evidence that suggests HIV-positive people are being blackmailed in exchange for not being prosecuted.⁷

Prosecutions in the United Kingdom take place under existing assault laws. These are similar for England, Northern Ireland and Wales, although Scotland has completely different laws. The first UK prosecution took place in Scotland in 2001, followed by England (2003) and Wales (2005). There have been no prosecutions in Northern Ireland.