The Latest on HIV Transmission from the Swiss Federal Court
This is my translation of the most relevant sections of a recent Swiss case of criminal negligence in the transmission of HIV, which I discuss in another post. The case breaks new ground in holding that an individual without actual knowledge of his HIV status can be convicted of negligently transmitting the virus. See Edwin Bernard’s blog for more coverage of the case.
Caveat emptor: I was quite fluent in German in 1979, before law school.
Judgment of 13 June 2008
Federal Judge Schneider, President
Federal Judges Wiprächtiger, Ferrari, Favre, Zünd
Clerk of the Court: Willisegger.
Defendant-Appellant, represented by Attorney Karin Meyer,
Complainant-Respondent, represented by lawyer Stephan Kübler,
Public Prosecutor of the Canton of Zurich, PO Box, 8090 Zurich.
The public prosecutor of the canton of Zurich conducted a criminal investigation of A._____ concerning allegations of intentional infliction of serious injury and intentional dissemination of human diseases. These proceedings were concluded with the dismissal of the charges on 26 November 2004. …
The public prosecutor brought these charges of negligence, however, in relation to the same crime. In the indictment of 28 July 2005, A._____ was accused of having infected the victim, X._____ , during unprotected sexual intercourse in the Spring or Summer of 2002. He allegedly did so in spite of the fact that he had earlier engaged in unprotected sexual intercourse with B._____, and had been informed by her in July, 2000 that she was HIV positive. Being aware of the possibility that he had been infected with HIV by B.________ or another person, A.________ failed to take a test for HIV, and never informed the victim in this case of the risk of infection. . By having unprotected sex in the belief that he was not HIV positive and not infectious, he breached his legal duty of care.
[The court spends several pages reviewing the evidence of who infected whom, noting that both parties had had several casual partners before and during their relationship, discussing a theory involving additional third parties, and noting that the complainant’s testimony that she had always practiced safe sex with all her partners other than the defendant was not entirely credible.]
4.4 In sum, the lower court found that the defendant carried a rare strain of HIV from which the strain carried by the complainant certainly derived, that her infection most probably occured in June 2002 and that the defendant was already infected at that time, and that there was no dispute that the couple had had numerous unprotected sexual contacts in the same time period (beginning/middle of June 2002). On these facts the possibility of HIV transmission via one or more third parties remains purely theoretical, insufficient to ground a reasonable doubt that the defendant was the source of the infection. The contrary conclusion of the lower court is not sustainable.
8.1 The measure of care to be observed in connection with the transmission risk of HIV is established by the recommendations of the Federal Office of Public Health (so-called safer sex rules). They indicate that protected sex with condoms is sufficient protection against HIV infection. Outside loyal partnerships, safer sex is always recommended, and is recommended within loyal partnerships if one of the partners is possibly infected and cannot rule out HIV infection with reasonable certainty. Reasonable certainty is a negative HIV test after three months (serological window) since the last risky encounter, including any sexual act that is not considered safer sex (Beglinger, op cit Art 231 N 32, with references).
The issue of a permissible risk arises in relation to HIV transmission insofar as many people are undetected carriers. In the legal literature, the question of whether such people are entitled to have unprotected sexual contact in spite of the risk is disputed. (for: Illegal Risk: Karl-Ludwig Kunz, AIDS and criminal law, the criminalization of HIV infection by Swiss Law, ZstrR 107/1990 p. 49 ff; negative: Beglinger, op cit Art 231 N 33, Christian Huber, Selected questions about the criminalization of HIV transmission, ZstrR 115/1997 p. 116 f.; also ibid., HIV infection and AIDS disease in the light of Article 231 of the Penal Code and Assault and Homicide crimes, SJZ 85/1989 p. 152 et seq.) The correct view is that the risk of transmission of the HI-virus is not a uniformly permissible risk that the partner must be assumed to accept (for example, the spouse with no suspicion of unilateral infidelity). The opposite view – that no duty of care exists to determine one’s own health status before engaging in risky contact in the absence of a legal obligation or actual knowledge of HIV infection (Kunz, a.a.O, S. 52) – cannot be accepted. The lack of an — explicit — legal duty to have an HIV test does not answer the question under what circumstances the permitted limit of risk is exceeded. Indeed, the official recommendations are actually directed to those who do not know whether they are HIV-infected (Beglinger, op cit Art 231 N 33).
The determining factor remains whether the risk creator had reason to believe he might be HIV infected at the time of the act, which is to be determined by the circumstances of the individual case. The most basic indicator would be the person’s own knowledge of past risky behavior, such as unprotected sexual contact with a person whose sexual record he does not know. In the presence of such knowledge, the risk-creator is obliged to renounce unprotected sex as long as he cannot reasonable exclude the possibility of his own HIV infection. One who, despite recognizing the possibility of HIV infection, nonetheless disregards safer sex rules and has unprotected sex has breached a duty and created an objectively heightened danger to the rights of his sex partner that exceeds the limits of a permissible risk.
8.2 According to the factual findings of the lower court, it is clear that the defendant had unprotected sex with different partners over several years. He could not exclude the possibility that he might have been infected with HIV during one of these contacts, and therefore was bound to take risk-minimizing precautions. At the latest after the disclosure of B._____ that she was HIV positive, the possibility of his own HIV infection would have been unmistakably clear. In consequence, he protected himself during sexual intercourse with B._____, but continued to have unprotected sex with the rest of his partners. He thereby disobeyed the safer sex rules and breached his duty by exposing his partners to an impermissible risk of HIV infection risk.
8.3 Contrary to the lower court, the accusation of breach of duty is not that the defendant had not undergone HIV testing. The accusation is rather only that he did not take safer sex precautions during sexual intercourse with the complainant, even though he had at the time concrete reasons to believe that he might be infected with HIV. The raised (but unresolved) question of whether he could rely on his good faith belief concerning the lack of fever symptoms must be rejected. Because of the government campaigns for AIDS prevention, it must be considered to be generally known that unprotected sexual intercourse with unknown or changing sexual partners brings with it a significantly increased risk of infection and the obligation to take appropriate protective measures (use of condoms). In risky behavior these protection measures are required of all, not least of an educated, cosmopolitan and experienced person such as the defendant. Finally, the lower court’s consideration of the general risk of infection is irrelevant. The obligation to protect exists irrespective of the statistical probability of transmission of the HIV virus. Because it is impossible to know exactly which unprotected sexual contact infected the partner (BGE 131 IV 1 E. 2.2 p. 6). The appropriate standard of knowledge is independent of whether the actor is behaving intentionally or negligently. In any event, the elements of unintentional negligence are clear: carelessness is not just a breach of duty when actor consciously ignores a risk to the other, but also when he doesn’t even consider the risk to the rights of the victim. (Article 12 paragraph . 3, sentence 1 of the Criminal Code).
8.4 Unprotected sexual intercourse is sufficient, without more, to transmit the HI-virus to a partner; indeed, unprotected sexual contact constitutes the main reason for the transmission of HIV. The danger of successful infection was predictable. Had the defendant taken precautions in accordance with the safe sex rules, the complainant almost certainly would not have been infected. This also establishes the avoidability of infection. It remains only to examine whether the behavior of the complainant influences the allocation of responsibility.
9.1 The attribution of responsibility [to the defendant] can fail on grounds of the personal responsibility of the victim. In this context, a distinction must be made between, inter alia, assisting another to endanger himself and endangering another with consent. The distinction depends on whether the rights-bearer so controls the event that at any time until the end he can take control, or whether the risky process is controlled by another. (BGE 125 IV 189 E. 3a; 131 IV 1 E. 3.2 ; Judgment of the Federal Court 6S_91/2007, January 17, 2008, E. 4.5, each with references).
Endangering oneself is not punishable. Nor is it punishable to cooperate in endangering another as long as the person encountering the risk to self and the person who is assisting are disregarding the risk to the same degree. The impunity for assisting another in self-endangerment arises from the legality of suicide and – subject to article 115 Criminal Code – assisting a suicide. If assisting in a suicide and also in deliberate self-harm is not punishable, it follows that assistance in self-endangerment cannot be punishable either. This reflects the normative value decision that there is no reason to constrain liberty as long as no one is endangered against his will (BGE 131 IV 1 E. 3.2; judgment 6S.91/2007, January 17, 2008, E. 4.5).
The impunity of assisting in another’s self-endangerment finds its limit where the assisting person has superior knowledge in relation to the threat in question (BGE 125 IV 189 E. 3a p. 194) or detects that the victim does not comprehend the scope of the risk. In such a case, the assistant creates a risk that the will of the victim no longer contemplates, and therefore its implementation is attributable to the cooperating person (BGE 131 E. IV 1 with references 3.3).
9.2 According to the case law, unprotected sexual contact with an HIV-infected person by an autonomous, informed partner constitutes assistance in self-endangerment, and not consensual endangerment of another. The crucial point is that, in sexual relations, the degree of risk is in principle under the control of both parties. They always have the option to break off in time, to use a condom or to insist that the partner does so (BGE 131 IV 1 E. 3.4 p. 10). In the cited decision, the Federal Court found that it was unpunishable assistance in self-endangerment where the victim knew his partner was HIV infected but nonetheless voluntarily continued to have unprotected sex. On the other hand, there was no excuse from liability in relation to the offence of spreading human diseases (Article 231 StGB). In the case of offences endangering the community, which pertain exclusively to public interests, the knowledge or attitude of the next person who happens to be affected is irrelevant (BGE 131 IV 1 E. 4, with references).
9.3 The same rule applies if neither of the two sexual partners knows (with certainty) that one of them HIV-infected. Whoever undertakes unprotected sexual contact without being able to rule out prior risky contacts and therefore HIV infection on the part of his partner, himself poses a danger to his own legal interests. The responsibility for harm falls as a rule on the autonomous, self-endangering behavior of the victim, should the harm of HIV transmission be realized. This applies only as long as both sexual partners disregard the risk of an earlier HIV infection and danger of transmission to the same degree. If there is on the side of the victim an ignorance of a material fact known to the actor, the self-endangerment is not longer consensual and therefore not his responsibility. In such a case, the realization of the risk is attributable to the partner (see Kunz, op cit ZstrR 1990/107 p. 55 et seq.).
9.4. According to her own testimony, the complainant only had protected intercourse with other partners, while she agreed to have unprotected sex with the defendant. There were apparently no reasons she could not have protected herself and insisted upon condoms. On the other hand, only the defendant knew that he had had unprotected sex with the HIV-infected B._____. He never informed the complainant. Likewise, she did not know that he had failed to take an HIV test and despite the information from B._____ continued to have unprotected sex apparently unconcerned about the consequences his behavior could have. Therein lies a material difference in knowledge. Thus it cannot be accepted, and we will not hold, that the complainant had the knowledge – particularly the knowledge of the defendant’s earlier risky contact with B_______ — that would have been necessary to make an informed choice to engage in unprotected sex.
[A______ was convicted of negligent infliction of bodily harm and negligent transmission of a disease]