Below is an excellent editorial by Henriette Laursen, director of AIDS-Fondet, and Susan Cowan, staff specialist at Statens Serum Institut, on the current state of HIV science and how it should impact the Danish Government's deliberations on whether or not to enact a new HIV-specific criminal statute following the previous statute's suspension in February 2011.
Henriette tells me that the Government's deliberations are still ongoing and that there will be no decision before the end of summer. But, she notes, "I guess the longer [Denmark is] without a penal code the easier [it is] to prove the country can live without [an HIV-specific law]."
The original Danish article, published in Information on 12th June 2012, can be found here. This is my English translation (with the assistance of Google translate) which might not be completely faithful to the Danish. Nevertheless, the ideas and arguments in the editorial are unchanged from the original.
Safer sex without a condom
The Ministry of Justice's proposal to revise the Penal Code on HIV, may have the consequence that those who can infect cannot be punished, and those who may be punished, cannot infect
In medical records, you can now find advice from infectious disease physicians to HIV patients which say thinks like: "Has been informed that (s)he has a sustained fully suppressed HIV and can drop the condom."
'Safer sex' for a person living with HIV today is not just sex with a condom, but also sex while under medical HIV treatment.
Medical HIV treatment today has the status of an adequate protection against infection in line with - or even more effective - than condom use. It is therefore completely by the book for the doctor to inform their successfully treated patients that they can drop the condom - in order to have children the old fashioned way, for example.
This knowledge, however, is not so well known outside of the medical field. Not least in the context of both the past and the present Government's deliberations on what to do with the Danish HIV-criminal provision which is currently suspended because HIV is no longer a life threatening illness.
As an alternative to the former penal provision working group under the Ministry of Justice suggested that HIV-infected persons who know their HIV status should be punished by up to two years in prison for having sex without a condom. This is completely without regard to whether the patient could possibly infect anyone due to the effects of medication.
To date, fifteen years after the introduction of effective HIV treatment, not a single case has been documented where a well-treated person with HIV has infected another person through sex.
Infection comes rather from HIV-infected persons who do not yet know their HIV status and therefore not in medical care. Due to their lack of knowledge that they are HIV-positive, for good reason these people are not penalized.
The infectious cannot be punished
If implemented the working draft statute broadly means that those who can infect cannot be punished, and those who may be punished, cannot infect.
The Working Group did not wish to limit the provision to people with HIV who actually are infectious, because it would be too difficult for the prosecution to prove this during a trial. [Editor's note: this is exactly the same weak argument that the Manitoba and Ontario Crown Prosecutors used in the Canadian Supreme Court.]
The Working Group evidently believes that that the same difficulties are not present when it comes to prove whether or not a condom was used.
It seems quite odd that it would be easier to prove what happened between two people in a bedroom than through medical records to determine whether the person with HIV at the time was under HIV treatment, where outcomes from regular blood tests can show that HIV is reduced to a degree which means that they cannot infect.
We would ask that future legislation is based on current knowledge about HIV. Since the implementation of the previous HIV criminal law there have been so many advances in the field that it no longer makes sense to criminalise HIV transmission.
HIV should now be equated with other serious infectious diseases and not have its own special rule in criminal law. HIV should instead preferably be fully addressed in the health system.
It should also be taken into consideration that the criminalisation of HIV transmission in our opinion does not help when it comes to limiting the spread of HIV. On the contrary, the fear of punishment means people hide and are not tested for HIV. It is not only harmful to the individual, who is at risk of illness and even death, but also for prevention.
If Government and Parliament, however, focused on work to clear the prejudice and stigmatisation of people living with HIV out of the way by implementing a decriminalisation of HIV, it would be of great benefit for prevention.
The time has come to repeal the HIV provision in the Penal Code. Medical advances mean that HIV is no longer the same kind of illness that it was 10 and 20 years ago.
Some people may be reassured if a small part of the Criminal Code is preserved to allow prosecutions for very egregious cases when a person knows their HIV status, is not on medical treatment, and in a reckless manner repeatedly and knowingly exposes others to infection. But to introduce the provision as proposed is not only pointless, but downright harmful for HIV control in Denmark.