In a remarkable turns of events in the Swiss Federal Assembly's National Council (lower house) yesterday, the new, revised Law on Epidemics was passed with a last minute amendment by Green MP Alec von Graffenried that only criminalises the intentional spread of a communicable disease.
The history of the revision of the Swiss Law on Epidemics has been a long and rocky one. The redrafting of revisions to Article 231 of the Swiss Penal Code – one of the most draconian and discriminatory laws on HIV exposure in the world – began in 2010.
The first draft of the proposed new article removed much of the most draconian provisions (i.e. allowing for prosecutions of an HIV-positive partner despite an HIV-negative partner's full, knowing consent to unprotected sex) leaving only intentional exposure or transmission a criminal offence. Broad stakeholder consultation agreed with this draft.
However, in December 2010, a new draft presented by the Swiss Parliament's Executive Branch (Federal Council) ignored the consultation and added lesser states of mind – simple intention and negligence – as well as malicious intent, despite the broad acceptance that the previous version had achieved amongst all stakeholders. Furthermore, the bill introduced a new paragraph creating an HIV disclosure defence.
At a mid-2011 hearing, the National Council's Committee on Social Security and Public Health (tasked with the re-drafting of the Law on Epidemics) appeared to be open to moving back towards the original draft. The Committee explicitly recognised that the present criminalisation of consensual unprotected sex between a person with HIV and one without undermines prevention efforts and the principle of shared responsibility of both sexual partners.
However, at the end of 2011 the Committee produced further amendments that discarded the disclosure defence but which added "lack of scruples" and "self-serving motives" as alternative elements of intent. The Committee remained split on the question of negligence with the majority opting to retain the section and the minority recommending it be stricken.
So it came as a very welcome surprise that, when the bill finally reached the National Council for debate and final vote yesterday, an amendment by Green MP Alec von Graffenried was proposed at the last minute and almost immediately and overwhelmingly passed by 116 votes to 40.
A transcript of the entire proceedings (in a combination of French and German) are available here, but below I quote the full (unofficial) English translation of von Graffenried's speech (courtesy of Nick Feustel) explaining his amendment.
In short, he says that the Law on Epidemics needs to deal only with public health issues, such as bioterrorism, and not address harm to individuals. He notes that general assault laws already exist to punish egregious cases of HIV transmission and that much of the proposed bill is not only redundant, but confusing. "You can't be 'negligent', 'malicious' and 'unscrupulous' at the same time, that's just not logical," he argued, quite convicingly.
Advocates in Switzerland were overjoyed at this unexpected turn of events, but one government insider warns that we should not celebrate too early. The bill must now go through the Health Commission of the Council of States (upper house), before it goes to a final vote, and this could take some time (June is mooted, but not definite) and so there may still be further amendments.
For now, however, the clear logic and rationality of von Graffenried is to be celebrated.
Hopefully these developments will have an impact on other countries, too, notably Norway where a similar commission is debating changes to laws that are eerily similar in purpose and outcome to Switzerland's notorious and outdated Article 231.
Von Graffenried's Speech
"I speak for the parliamentary group of the Green Party, but of course also in part for my proposition as an individual. This is about punitive laws, we are talking about the amendment of Article 231 in the Penal Code. Reading the draft doesn't really make you understand what the Commission was about. So I stopped short and then tried to make it clearer in my proposition. As Mrs Schenker explained earlier, there were still some unanswered questions after the Commission's consultation.
"The problem is that when it comes to transmission of diseases there are always two levels. On the one hand, there is the individual level, the individual health of the aggrieved party. Their health and physical integrity are protected by Articles 111 and the following on those offenses at the beginning of the Special Section of the Penal Code. On the other hand, there is the disease-control part of it. This is the part that article 231 is meant to deal with. That was – how I learned from conversations with the Commission's members – the Commission's concern. Article 231 in its present form confuses these two levels. That is how, until now, for example an HIV positive person becomes guilty of bodily harm according to article 123 as well as the spreading of human diseases according to article 231.
"In their draft, the Federal Council completely revised article 231. They included a 'basic offense', a 'qualified offense', a 'privileged offense' and a 'negligent offense'. But they still adhered to article 231 protecting individual health as well as being effective for disease-control. This was obviously not what the Commission wanted, and so they slashed the article.
"Obviously, the Commission didn't want to adopt this concept. They only wanted to adopt the 'qualified offense', i.e. a highly criminal, if not even terroristic offense. This is about public health, i.e. the spreading of epidemics. This is what I adopted for my proposition. Possible intentional or negligent bodily harm or even manslaughter are covered by the regulations in Article 111 and the following of the Penal Code. Those are about individual health. Thus, criminal liability is only carried out under these regulations, but not anymore under Article 231 of the Penal Code on the spreading of human diseases.
"However, the Commission adopted the 'negligent offense'. I'll have to expatiate on this.
"The negligent perpetration is already regulated under the Administrative Criminal Law. Having an article in the Penal Code on this is unnecessary, because this regulation is already included in Articles 82 and the following of the Epidemics Law, which you have just enacted without discussion. Negligent perpetration is already included there.
"The Commission's version is not possible, because the Commission eliminated the 'basic offense'. You can't be 'negligent', 'malicious' and 'unscrupulous' at the same time, that's just not logical. Paragraph 2 would become ineffective, but at the same time it would also prevent the application of the Administrative Criminal Law, because Article 82, paragraph 1 excludes applying the Administrative Criminal Law, because the Penal Code does have this regulation.
"Therefore, I ask you in the name of the parliamentary group of the Green Party to accept my proposition as an individual, in order to clarify the punitive laws."
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