Swiss Court Frees HIV+ Man
posted: 10/03/2009
In the first ruling of its kind in the world, the Geneva Court of Justice has freed a man given 18-months prison for exposing someone to HIV.The court ruled that the risk of HIV transmission while the man was on treatment was far too low to justify the conviction.
In Switzerland, public health law effectively made it a crime simply for people with HIV to have any unprotected sex. However this court has now changed this. It accepted expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000. It ruled that this level of risk was far too low to keep unprotected sex a public health crime.
The case began in Lausanne in 2007, when a court sentenced the HIV-positive man, originally from the Democratic Republic of the Congo, to a suspended 28-month sentence for having unprotected sex, without telling his woman partner his HIV status.
Swiss HIV Law
Under the public health parts of the Swiss criminal law, Article 231 allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. The UK doesn’t have a public health criminal law about disease exposure. Prosecuting and criminalising public health was dropped in the UK because it goes against the principle of encouraging people to come for testing and treatment. Criminalising public health drives people with health needs underground and protecting public health becomes far more difficult.
People with HIV in Switzerland can also be prosecuted under Article 122, for an attempt to engender grievous bodily harm. This makes it an attempted grievous bodily harm to have unprotected sex, even if there is no HIV transmission. People with HIV in Switzerland are jailed simply for having unprotected sex. This can't happen under English law. Here HIV transmission has to take place before the charge of "grievous bodily harm" can be made. There is no English crime of attempted grievous bodily harm.
Deborah Glejser of Swiss community HIV organisation, Groupe SIDA Genève, explains that although this public health law could be used even more harshly, to prosecute unprotected sex even when HIV status has been disclosed, in practice, the Swiss only prosecute HIV exposure without disclosure. Suspended sentences are normal so this man’s imprisonment was unusual.
Trial judge refused to consider Swiss statement
A second complaint last year led to the man standing trial again in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the man's lawyer had put forward the statement by the Swiss Federal Commission for HIV/AIDS as evidence, and Geneva's deputy public prosecutor wanted to suspend the hearing to consult with the Swiss HIV Commission, the lower Geneva court refused to allow this. This made it his second conviction so he was sent to jail for 18 months, in December 2008.
This clearly annoyed the deputy Public Prosecutor who felt justice was not being done or being seen to be done. The court refused to consider the evidence even the prosecutor thought was relevant. We are left with the suspicion that a white Swiss native would have not been jailed for 18 months like this black African migrant. The British pattern of a disproportionate numbers of migrants being jailed for HIV crimes is found across much of the globe
It's Super-Public-Prosecutor to the rescue
Late in February the deputy public prosecutor came to the rescue and told the Geneva Court of Justice that he was convinced by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000. Under the circumstances he wanted to appeal so as to withdraw the charge and for the court to cancel the conviction.
On Monday, the Geneva Court of Justice acquitted the man, who was freed after almost three months in prison. Geneva’s deputy public prosecutor, Yves Bertossa, called for the appeal, told the newspaper Le Temps that although there is still some debate regarding the slight risks of transmission in people on successful treatment this should not be used unfairly: "One shouldn't convict people for hypothetical risks,” he said.
Swiss statement did what it set out to do
Professor Hirschel said that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues issued their January 2008 statement of advise for courts and prosecutors.
The Swiss panel has had enormous global attention and a great deal of criticism for openly talking about and applying the lessons of modern HIV treatment to the lives of people living with HIV. Swiss HIV clinicians wanted to put a stop to much of the jailing of people with HIV - simply for having unprotected sex without any HIV transmission.
Deborah Glejser of Groupe SIDA Genève added that Monday’s ruling means that, in Switzerland, HIV-positive people on treatment which is working properly should no longer be prosecuted for having unprotected sex. She hopes that this ruling will help people in other countries that prosecute HIV exposure – and she’s been contacted by many already.
Hopes for fall in global prosecutions
Last May, a five member US Court of Appeals for the Armed Forces panel rejected, but only by a narrow majority, an appeal by an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. And last July, a Canadian court considered and rejected the Swiss statement in the case of a man charged with having unprotected sex with six women.
Following Monday's ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws."
source
Permalink