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Swiss court overturns failure to disclose conviction

Risk of HIV transmission too low say experts

Credit: Ken Bosem illustration

A Swiss court has overturned a prison sentence for a 34-year-old man who allegedly failed to disclose his HIV-positive status to a woman before having unprotected sex with her.

The woman did not become HIV positive as a result of having sex with the accused.

The accused man has a very low viral load because he is undergoing antiretroviral drug therapy. The court threw out the conviction against him after prosecutors became convinced that the risk that he could transmit the virus, even during unprotected sex, is less than one in 100,000.

Read a more complete account of the Swiss story on Aidsmap.com.

This is an important development in HIV criminalization worldwide because it is an example of a court of law taking a more sophisticated real-risk based approach to HIV prevention.

In Canada things are much different.

In 1998 the Supreme Court of Canada ruled that you could be charged with aggravated assault for failing disclose your HIV-positive status to a sex partner before having unprotected sex. You don’t need to transmit the virus to be found guilty — you don’t even necessarily need to be capable of transmitting the virus — you just need to be HIV positive.

In the last few years an increasing number of HIV-positive people in Canada, including many gay men, are being charged and convicted of violent offences ranging from aggravated sexual assault to murder.

It is morally dubious to deliberately expose a sex partner to a potentially lethal virus but a growing chorus of activists and researchers are saying HIV criminalization is fraught with injustice. They argue variously that criminalization hampers HIV-prevention efforts, fans the flames of HIV stigma, is rooted in misinformation and hysterical fear, puts the responsibility to protect sexual health entirely and unfairly on the shoulders of people living with HIV, turns gay men against each other and serves only to further victimize poz people.

Read more about HIV criminalization here.