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Thursday 10 November 2011

Denmark: HIV to be removed from Article 252, but new statute wording may re-criminalise non-disclosure without "suitable protection"

Denmark's new Minister of Justice Morten Bødskov is now taking formal steps to remove references to HIV from Article 252 of the Danish Penal Code which means that, for the time-being, HIV exposure and transmission is decriminalised.

The news was released in a letter dated 8 November and provided to me by AIDS-Fondet (Danish AIDS Foundation).

That's the good news. The not-so-good news is that the working group set up to examine whether or not there should be a new HIV-specific law is proposing new wording for a statute that would criminalise non-disclosure of known HIV-positive status, unless "suitable protection" is used for vaginal or anal intercourse.

Their recommendations will be considered during a consultation period which ends on 6 December 2011.  Members of all branches of the criminal justice system are being consulted as well as HIV and human rights organisations.

Denmark prosecuted its first HIV-related criminal case in 1993, but the Supreme Court found in 1994 that the wording of the existing law (“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.  After at least 15 prosecutions, the former Minister of Justice suspended the law earlier this year due to concerns that it no longer reflected the realities of HIV risk and harm.

The working group has produced a 20 page memo which states that the legal basis for the current statute no longer exists and, therefore, it should be repealed.  They particularly emphasise the increased life expectancy for people on antiretroviral therapy (ART) and conclude that HIV is no longer "fatal" (although it is still "incurable").

The lifespan of a well-treated HIV-infected individual does not differ from the age and gender-matched background population, and...timely treatment is now as effective and well tolerated (i.e, usually without significant side effects) so that an estimated 85-90 per cent of patients can live a normal life, as long as they adhere to their treatment on a daily basis.
The memo then examines HIV-related risk (including the impact of ART on risk) and harm and  highlights that it is the estimated 1000 undiagnosed individuals (out of an estimated total of 5,500 people with HIV in Denmark) that are more likely to be a public health concern.

It notes that using HIV as a weapon in terms of violent attacks with needles; rape; or sex with minors could still be an aggravating factor during sentencing under other, revelent criminal statutes. However, a 1994 Supreme Court ruling found that general criminal laws, such as those proscribing bodily harm or assault could not be applied to sexual HIV exposure or transmission.

The memo then presents arguments for and against a new statute. It argues that any new law should not proscribe 'HIV exposure', since it notes, the risks of HIV transmission on ART "are vanishingly small" and so it would be very difficult for any prosecutor to prove that someone was exposed to HIV under these circumstances.

Since ART is now considered to be effective as condoms in reducing HIV transmission risk, the working group considered whether it might be possible to only criminalise untreated people who have unprotected sex, but worry that proving that a person on ART was uninfectious at the time of the alleged act would be too difficult.

Similarly, although they consider the UNAIDS recomendation to only criminalise intentional transmission via non-HIV-specific laws, they were concerned that proving such a state of mind would be extremely difficult.

They conclude that if a new statute were to replace Article 252 it should criminalise non-disclosure unless "suitable protection" is used. (This potentially leaves it open to argue that ART as well as condoms could be considered "suitable protection.") Their suggested wording is
§ x. Whoever has a contagious, sexually transmissible infection which is incurable and requires lifelong treatment and has intercourse with a person without informing them of the infection, or using suitable protection, is punishable by a fine or imprisonment for up to 2 years.
They note, however, that since the harm of HIV is reduced due to the impact of ART that the current maximum sentence of 8 years in prison should be reduced to 2 years and "the normal penalty should be a fine or a short (suspended) term of imprisonment."

Although they are not necessarily recommending this new statute, the working group warns that "decriminalisation...may have unintended, negative consequences" and that public health and community based HIV organisations alike should ensure that health education about HIV and how to avoid it continues unabated because "it is important to send the message that HIV is still a disease that must be taken seriously."



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