Criminalization of people with HIV: Swiss judge orders HIV positive woman to disclose partners’ names

HIV and AIDS support groups have criticised the court’s interpretation of a Swiss law designed to combat epidemics so that it would apply to people infected with HIV. Lawyers also warned of the complicated legal issues in forcing a person to hand over such sensitive information.

The woman came to the attention of the courts after a Swiss man on trial for rape named the HIV positive mother of two as one of his victims.

During the trial, defence lawyers had pointed out that the women, who is aged 42 and is unnamed for legal reasons, was a drug user as well as being HIV positive. They also said she had earlier had consensual sex with her attacker and that she had two other lovers.

Prosecutors were informed, and a criminal investigation based on the evidence given in court was launched, involving charges of deliberately spreading a disease. A police investigation discovered that the woman had turned to drugs after she had been abused by her father and had later been raped several times by the accused man in whose trial she had been named.

It was also confirmed that the rapist and the other two men mentioned in the case had known that the woman was HIV positive before they agreed to sex, although only the woman was charged when the case appeared at Zurich County Court.

Convicting her, the court ruled that the only consideration was the likely spread of the disease and that the fact that the sex was consensual was irrelevant-as was the fact that none of the men had contracted HIV.

Nevertheless she was sentenced to a year in prison, suspended for three years. She was also ordered to name all her sexual partners and to report to officials in the future with the names of any further sexual partners, regardless of whether or not she had had safe sex.

The verdict is in line with the Swiss High Court’s interpretation of Article 231 of the Swiss Penal Code, which stipulates that people infected with HIV will be prosecuted for having unprotected sex, even if the partner agrees to it.

BMJ 2006;332:809 (8 April 2006)