Viral Load Will Be No Defense Against Prosecution for HIV Exposure or Transmission in Norway
AIDSMAP (10.20.12):: Gus Cairns

A report by a Norwegian Commission on HIV and the Law increased the state’s options to prosecute persons who infect or expose others to HIV. The courts in Norway prosecuted individuals under a 1902 law meant to be used against those who negligently or deliberately spread communicable diseases such as TB, but except for one case in the 1930s, this law had only been used in cases of HIV since 1991. Since a revision of the 1902 act was imminent, HIV activists had campaigned for a change in the law with the expectation that the new law would restrict HIV transmission prosecutions to clearly deliberate cases or at least only to transmission rather than exposure.

The commission’s report rejected the proposal to abolish disease-specific legislation and use the general law on assault. It felt that this would make prosecutions for HIV transmission or exposure too difficult as Norway’s assault law requires proof of intent. The report more clearly distinguishes between the “spread of disease” and the “transmission of disease,” with spread of disease applying to contagious disease and transmission to sexually transmitted disease. Also, by a nine-to-two majority, the commission retained HIV exposure as a criminal offence meaning that the disease does not have to be transmitted to be considered a crime. The members of the commission used public health reasons for retaining exposure as a crime, explaining that if transmission only were a crime, the law would not act as a sufficient deterrent. The commission dismissed arguments that the law might have negative effects on public health by making people afraid to test or disclose status. The recommendations make allowances for condom use, as no offense would be committed when proper infection control measures, such as use of a condom, have been used.

The recommendations also state that a single case of exposure without transmission would probably not be prosecuted, but single exposures would still be crimes if transmission occurred or there were other aggravating circumstances such as direct lying about one’s serostatus. The commission does not regard undetectable viral load as part of a valid defense. It notes that viral undetectability may be taken into consideration during sentencing, but not during prosecution. The report also mentions disclosure. Transmission or exposure is not automatically an indictable offence between spouses, who have to specifically make a complaint. The commission allows specific evidence of disclosure, in that if a partner truly consents to the risk of infection from unprotected sex, then no offense is committed. To avoid assertions that cannot be proved, consent would only be valid if witnessed by a medical professional. It is noted that even though Norway has a small HIV epidemic concentrated mostly in gay men, most prosecutions have been for heterosexual transmission.

20 December 2012
Translation / Edition: Admin