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Criminalisation des séropositifs | Suisse

Switzerland. A new HIV transmission conviction exposes the link between racism and public health

1 August 1996 (MAHA)

GENEVA, 1 August 1996 (MAHA)

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HIV+ African man jailed for transmission

A judge has condemned to prison a 30-year-old, HIV+ Zairean man under Switzerland’s HIV transmission law as well as for "grievous bodily harm" (lésions corporelles graves) to an HIV+ white Swiss woman. The woman’s attorney had also asked that the court consider a condemnation for homicide (attempted murder). The court rejected this claim.

In the past, Swiss AIDS organizations have taken clear-cut positions against criminalization of HIV transmission. This time, however, they have been at best slow and at worst totally absent. And no one is willing to talk about the impact of racism - in particular the racist mythology about "African AIDS" and sexuality - in this case. In fact, for one public health official, "there is no [racial] discrimination involved, since [white] Swiss have been condemned on the same charges in the past."

But it is, unfortunately, not so simple. Swiss police and prison racist violence has been denounced by Amnesty International and others. What kind of health care will an HIV+ African man obtain in a Swiss prison?

Also, whereas a white Swiss man condemned under the law might have a network of family and friends to support him, this is unlikely to be the case for a refugee. And a white Swiss man will never face the Double Penalty of deportation.

In Switzerland as elsewhere, such cases necessarily rest on presumptions which are difficult if not impossible to establish as fact. A drug user, for example, is more likely to be presumed "guilty" of HIV transmission. In the same way, the racist mythology about "African AIDS" stigmatizes all Africans as HIV carriers. Africans are also more likely to be tested without their consent.

The man condemned in Yverdon was told by his doctor of his sero-status after his marriage to the woman who filed charges against him. She discovered her status in 1995 following a blood donation. Why did the justice system assume that transmission could only be one-way? This question needs to be asked not to try to reverse the blame, but to point out that although there may be additional evidence, this information was not seen as relevant to media coverage.

HIV criminalization in Europe: same old story?

Some activists argue that there is no point rehashing the same arguments against criminalization until a new, broader strategy to influence public opinion has been developed. They cite frustrations with media simplification of a very complex debate, and journalists’ focus on the "emotional" side of the story. Arguments about why, if nothing else, criminalization makes for bad prevention drop out of the picture.

The Projet Migrants, Switzerland’s cutting edge HIV prevention project, has taken no position on this or any other individual case, despite strong support in principle against criminalization. The project’s sole worker responsible for prevention in the tiny African communities, in fact, had not heard of the case until Migrants against HIV/AIDS contacted her.

Other groups, like Sidaction in Lausanne, are faced with what they call "both sides of the issue." The Zairean man condemned at Yverdon contacted the group, and Sidaction are trying to "support" him. However, a member of Sidaction explained that taking a collective position may be difficult, as the group has also taken up the case of an HIV+ woman who is considering pressing charges against her former partner.

In 1992, it was Sidaction which alerted other AIDS organizations and the media about the threatened deportation of a Brazilian man. Despite broad mobilization on the basis of "humanitarian principles," this man was eventually forcibly deported. Swiss organizations tried to be discreet about the fact that he was also a victim of the "Double Penalty," targetted for deportation after a prison sentence.

In Switzerland, an informal agreement exists to grant temporary residency and access to health care for people with AIDS, but this applies mostly to refugees whose claim for asylum has been rejected. To this day no anti-deportation campaign or AIDS organization has dared to make of leave to remain for people living with HIV a political demand, rather than a "humanitarian" privilege.

The stink of Denmark

HIV transmission laws are often considered a legacy of a nineteenth-century idea of public health as repression.

However, only four years ago in Denmark, politicians used the public condemnation and media hysteria over the case of a Haitian man to pass law criminalizing HIV transmission.

"Diego," as he was called by newspapers, caused much havoc after it was revealed that, despite knowing of his HIV+ status, continued to have sex. Among his partners were white women, including several teenage girls.

Basim Osman, an HIV worker in Copenhaguen, told Migrants against HIV/AIDS of the viciousness and the racism with which the media characterized "Diego" as a "ruthless criminal with an unquenchable desire for the opposite sex." Very soon, opinion polls showed that 82% found him "worthy of a severe sentence," according to Osman.

It didn’t take long for legislators to propose and pass a bill dubbed "Lex Diego" stating that "anyone endangering another person with a life-threatening and incurable disease" risked four years of imprisonment. Aggravating circumstances included lying about HIV status, sexual intercourse with minors, and rape.

For HIV+ "Diego", the ordeal lasted two more years until, finally, Denmark’s Supreme Court acquitted him of the charge of "endangering the lives of others." He nevertheless served eight months for having sexual intercourse with an under-15 minor.

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