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

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 convicted to ten months imprisonment by the District Court, the Court of Appeal dropped one of the charges and reduced the man's remaining prison sentence to four months primarily because there was no evidence of when the physician's partners were infected.

Original post: 22nd June 2010
A gay man in Stockholm who works as a doctor has been sentenced to ten months in prison for 'reckless endangerment' and must pay 26,900 kronor (€2825) compensation for having unprotected sex without disclosure with another man.

However, the more serious charge of aggravated assault brought by a second man who alleged that he became HIV-positive as a result of unprotected sex with the defendant was dismissed by the court because "it can not be ruled out that he was infected by someone else."

The case, reported in the English language at The Local.se, is at least a partial victory: the court appeared to understand that phylogenetic analysis can only be useful as 'proof' of transmission if all previous sexual partners prior to an HIV-positive test are also tested and those who are positive included in the analysis.

Lawyer Elisabeth Massi Fritz, representing the two men, told news agency TT that the ruling will be appealed. "The prosecutor and I agreed that we would appeal if any of the charges were to be dismissed."

The man was facing a further charge of aggravated assault, with an alternative charge relating to causing the HIV infection. These charges were dismissed by the court as it could not be concluded that the doctor was responsible for the infection. Elisabeth Massi Fritz says she is not surprised at the verdict but expressed disappointment that one of the charges was dismissed.

"There can be no other person that has infected my client. But we have to obtain a supplementary investigation to prove this," said Massi Fritz.

During sentencing the judge said that since the man worked as a doctor, he ought to have known better.

The district court concluded in its ruling that the doctor's actions had threatened the lives of the men and that his offence should be considered especially serious, given that in his professional capacity he should be aware of the Swedish Institute for Infectious Disease Control (SMI) rules of conduct.

However, since the maximum prison sentence is two years for this 'crime' he was still somewhat lenient - if you accept that a prison sentence for not disclosing your HIV status before sex that may risk HIV exposure (and we don't know about the doctor's viral load, or the sexual acts or sexual position which may have reduced the risk to almost zero, or better than using condoms) is ever warranted.