February 26, 2012

This is a translated and edited article I wrote, first published at the biggest website for gay people i Scandinavia: http://www.gaysir.no/artikkel.cfm?CID=14998

HIV criminalisation, “safer sex” and disclosure?

After following various posts and discussions about HIV criminalisation in Norway, I would like to contribute to both clarifying and problematizing this subject. It is in fact more complicated than what often appears.

Most HIV-positive and negative will probably agree that as a society we need to protect us from such an in general dangerous disease as HIV (although the disease is less somatic dangerous today because of successful medication). Psychosocially there are unfortunately many who feel that there has not become much easier to live with it.

Such protection rests primarily on: 1. Individual's ability to protect themselves, 2. The morality / ethics among the HIV-positive population (that they take responsibility to not spread the disease further by informing about their status and / or protect their sexual partners) and 3. Laws approved by the politicians and the judicial interpretation and application in criminal cases.

All three forms of protection are important and necessary. Often is the discussion about the emphasis between them. I will concentrate on the last.

Since morality / ethics are subjective sizes with few sanctions, it is inconceivable to me that the society should not have any laws for use in cases in which HIV-positive deliberately infect others. The laws will also be normative for what we as a society feel about right morals / ethics. In that way, they play an important educational role. This is also where it starts to get complicated.

Current penal code §155 (HIV-paragraph) reads:

"He who with reasonable grounds to believe he is infected with a serious communicable disease, willfully or negligently infects or expose another to a risk of being infected, shall be punished with imprisonment up to 6 years in cases of willful violation and imprisonment for up to 3 years at negligent violation. " (My translation). In addition, there are substantial sums in compensation to the complainant.

The law is a general preventive law. In each case where a person files a complaint for breaching it, it will be "... for crimes against society." You do not have to infect someone to be imprisoned in Norway. It is enough to have exposed someone to a potential infection. Of the 20 or so sentences so far, some of them apply to such cases.

If one should have such a strict law regarding HIV-infection is not my concern in this article. The arguments for it and against it ranges from that it could have been further sharpened (was last increased in the 90's) to total liquidation. Regardless of witch "camp" we belong to, there is a great paradox surrounding the law as nurturing and guiding for HIV-positive behavior.

It seems to be quite common that the healthcare-sector informs that HIV-positive do not have to disclose their status to sexual partners (it is actually not written in the law). Personally, I have been informed about this all the time in my meetings with an otherwise wonderful HIV-specialized medical staff.

Back in 2006 the Supreme Court (the only of its kind?) concludes, however that there exists a duty to disclose information even if you practice safer sex (http://hivnorge.no/id/248.0 and hivnorge.no/asset/469/ 1/469_1.pdf). So there is precedent from the Supreme Court that we have a legal duty of disclosure.

Furthermore, some parts of the healthcare-sector informs that if we practice safe sex as well, using condoms, we will avoid any penalties from the authorities. This is not completely wrong, but inaccurate. What is "safer sex" and what is meant by “use of condoms”?

The term "safer sex" indicates that no sex can be considered 100% safe. Often described as the concept of using a condom during anal and vaginal intercourse, but not for oral sex, if there is no contact with sperm or precum from the penis. It is often recommended to use a condom even for oral sex, but it is not normally defined as part of the term "safer sex".

Doctor Frank O. Pettersen at infectious medical ward at Ullevål Hospital responds to "Anna" about "safer sex" this way:

"Transmission from HIV-positive men to a HIV-negative man or woman who performs oral sex is considered a so-called safer sex as long as the one that sucks, do not get semen in the mouth." (Http://hivnorge.no/id/496.0)

Dr. Haakon Aars replies to a letter this way:

"There is a lot of sex you can have that are defined as "safer sex" in relation to infection. Such as mutual masturbation. Also sucking, if you do not ejaculate in your partner's mouth."

Both doctors will take further proviso that oral sex is not without danger of infection under certain conditions, but none of them talks about using a condom for oral sex as part of the "safer sex" concept. This has also been the usual information I have received from the healthcare-sector. HivNorge (the biggest HIV organization in Norway) confirms in their brochure "HIV and criminal law in the Nordic countries", that the practice of safer sex rules out punishment according to the Penal Code, and that there is no legal obligation to disclose HIV-status to sexual partners.

In contrast to this is the judgment of the Court of Appeals, February 2010, where it is established that an HIV-positive who have oral sex with another without a condom, can be convicted for violation of §155. (Http://hivnorge.no/id/710.0)

Attorney Brynjar Meling said in an interview:

"I cannot see anything but that penal code §155 means a sex-ban for people who are infected with HIV …".

Further he says:

"... We imagine a hypothetical case where an HIV-positive has infected his girlfriend. To avoid being accused himself, he files a complaint about his previous girlfriend for exposing him to HIV-infection. Even though it is likely that he has known about her HIV-status, and used this to force her to remain in a relationship she wants out of, she is accused and convicted. "

When asked if this is a realistic example of how the law can also be used to give false accusations against people with HIV or put pressure on HIV-positive to remain "in place" in a destructive relationship, Meling answer a simple but clear "yes".

So where are we then, as HIV-positive? In the field between well-meaning organizations and health workers and the legal system conservative interpretation of the law? As a newly diagnosed, we are not faced by lawyers explaining the legal consequences of being HIV-positive. As defendants, we are not exempt from criminal liability, even if we acted in good faith. Politicians have so far failed to address the need for clearer definitions (even with the revised criminal penal code §237 and §238 these questions remain unanswered, and handed over to legal interpretation).

The best hope for a clarification is now at the Syse-committee, which until October 2012 will review the laws regarding serious communicable diseases. Is it allowed to hope for clearer guidelines?

Louis Gay

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