Viral load will be no defence against prosecution for HIV exposure or transmission in Norway

HIV campaigners reacted with dismay today to the issuing of a report by a Norwegian Commission on HIV and the Law which, while making one significant concession in the shape of allowing condom use as a defence, in some other ways strengthens the options the state has to prosecute individuals who infect, or expose others to, HIV.

Until now individuals were prosecuted in Norway under a 1902 law intended to be used against people who negligently or deliberately spread contagious diseases such as tuberculosis (TB) but which has, in practice, only ever been used in cases involving HIV, and only since 1991, apart from one isolated case in the 1930s.

A coalition of HIV activists had campaigned for the law to be revised, hoping that an examination of the law would lead to it restricting HIV transmission prosecutions to clearly deliberate ones or at least only to transmission rather than exposure, as has happened in some other countries such as The Netherlands and Denmark – which suspended prosecutions under its own criminal code last year. The occasion to do this was prompted by a revision of the 1902 act, the legislative framework for which was voted through in 2005.

In the event the document produced by the 12-person commission will make it easier rather than more difficult to prosecute cases of HIV transmission or exposure.

The commission's report are only recommendations, but given that all recomendations were endorsed by a minimum nine-to-two majority, considerable pressure wil be needed to change them.

By an eleven-to-one majority, the commission rejected one proposal, which was to abolish disease-specific legislation and to use the general law on assault, as is the case in the UK.  

They specifically reject this as making prosecutions for HIV transmission or exposure too difficult, as Norway’s assault legislation requires proof of intent – and because it would make it too difficult to prosecute people who have behaved towards others “in a blameworthy, extremely indifferent or reckless manner”. In short, they wish to make it clear that the prosecution is for bad moral behaviour as much as it is for its effects.

The Commission also makes a clearer distinction between the “spread of disease” and the “transmission of disease” – the former applying to contagious diseases like flu and the latter largely to sexually transmitted diseases.

The most significant disappointment is that, by a nine-to-two majority, the commission decided to retain a criminal offence of HIV exposure, i.e. that transmission would not be necessary in order for there to be a crime. They give public health reasons for retaining exposure as a crime, namely that if only transmission were a crime, the law would not act as enough of a disincentive. They say: “Only by ensuring that the penal provision also covers exposure to another person to the risk of infection will it promote a change in behaviour and thereby contribute to infection control".   

The commission, on the other hand, dismisses arguments that the law might have negative effects on public health, for instance by making people afraid to test or to disclose their status, by saying: "The Commission has found little scientific evidence of the effects of criminal regulation of infection transmission and exposure".

The commission makes one major concession in the shape of condom use, saying that no offence would be committed “When proper infection control measures (such as use of a condom in connection with sexual intercourse) have been observed.”

It also makes a fairly significant concession in saying that a single case of exposure, without transmission, would probably now not be prosecuted, wishing to allow some latitude for what it calls “slip-ups”. However single exposures would still be crimes if transmission occurred or if there were other aggravating circumstances such as direct lying about HIV status.

The commission says that the condom defence would apply regardless of other risk factors such as the HIV-positive person’s viral load. This directly contradicts the recent judgement of the Canadian Supreme Court, which said that condom use alone was not a sufficient defence against prosecution as there was still a “realistic possibility” of infection: only in cases where condoms were used and the HIV-positive person had an undetectable viral load would HIV exposure without disclosure not be regarded as a crime.

The Norwegian commission, also in contradiction to Canada, does not regard undetectable viral load even as part of a valid defence. Nearly five years after the Swiss Statement that asserted that people with stable undetectable viral loads and no sexually transmitted infections could not transmit HIV, and 15 months after the results from the HPTN 052 study, which found that HIV treatment reduced the chance of infection between heterosexuals by 96%, they assert that “The knowledge available about the risk of infection at any given time associated with an HIV-positive person under medical treatment remains too uncertain to conclude that the description of the offence in the penal provision is not met.” They say that viral undetectability may be taken into consideration during sentencing, but not during prosecution: “The probability that the risk of infection is reduced may, depending on the circumstances, be given weight during sentencing.”

It is of note that, even though Norway has a small HIV epidemic concentrated overwhelmingly in gay men, most prosecutions have been of heterosexual transmission.

Finally, the commission makes mention of disclosure. The attitude toward disclosure in Scandinavian law is unusual as it regards assaults as offences against the state – against the body politic, if you like – and not as such against the individual. Harm is harm, therefore, even if one person has consented to the risk of harm.

The 1902 law does not mention disclosure and it has never been a valid defence: transmission or exposure are still indictable offences even if the partner is fully aware their partner has HIV. The only concession in this field is that transmission or exposure are not automatically indictable offences between 'next of kin', meaning spouses, which has included male/male couples since Norway legalised gay marriage in 2009. Next of kin have to specifically make a complaint and therefore in theory there would not be an indictment if they do not find out their partner has HIV.

The commission, for the first time, allows a specific defence of disclosure, but one whose practicality is questionable: it says that if a partner (which doesn't have to be a spouse) truly consents to the risk of infection via unprotected sex, then no offence is committed – but that to avoid unprovable assertions that partners assented to this risk, says that consent would only be valid if it is witnessed by a medical professional, presumably envisaging that serodiscordant couples would choose to make a clinic appointment to do this.

Louis Gay, the Norwegian activist who is publicly fighting a prosecution for a single case of oral sex – even though he disclosed and which, ironically, might not be indictable under the proposed new legislation – simply commented: “Welcome to my world”.

Indicted in March, Louis’ trial has now been postponed because his complainant – whose HIV has been shown not to come from Louis – has left the country.