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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.
The Friends of AIDS Foundation is
dedicated to enhancing the quality of life for HIV positive individuals and
empowering people to make healthy choices to prevent the spread of the HIV
virus. To learn more about The Friends of AIDS Foundation, please visit:
http://www.friendsofaids.org.
TOGETHER WE REMAIN STRONG!
