“Should someone who knowingly and willfully takes a significant risk of infecting a sex partner with HIV be punishable under criminal law?” That was the main question in a debate on a working conference on Stigmatisation and (Criminal) Law. Here the speech of Kathalijne Buitenweg (GroenLinks).
Introduction by Kathalijne Buitenweg MEP for the European working conference on Stigmatisation and (Criminal) Law, Amsterdam, 24 September 2004
Should someone who knowingly and willfully takes a significant risk of infecting a sex partner with HIV be punishable under criminal law? I must admit that my first reaction to this question was: why not? It is a morally reprehensible act which can cause serious harm to another person. It seems to qualify as criminal recklessness, or as in the Dutch penal code: attempted assault occasioning grievous bodily harm.
But of course for law makers, when passing laws, ‘why not?’ should not be the end, but the starting point of reflection and deliberation. And in fact, I have come to understand that there are good reasons not to criminalize HIV transmission, except in rare cases such as rape and deceit where “It takes two to tango” doesn’t apply.
In a variety of ways, criminalization can have adverse effects on public health. The Dutch Executive Committee on Aids Policy & Criminal Law lists these adverse effects in its excellent report and UNAIDS shares these concerns. Repression of HIV transmission can undermine preventive efforts and might lead to more, not less infections. A responsible lawmaker should not apply criminal law when its effect is counterproductive.
However, the quick-scan conducted by GNP Europe (Global Network of People Living with HIV/AIDS) shows that in almost all European countries, transmission of HIV (or taking the risk of doing so) is punishable, as an injury to health, bodily harm or even manslaughter and murder. Should we push the institutions of the European Union to make a European law decriminalizing HIV transmission?
I don’t think this is feasible. In the first place, when it comes to the definition of crimes and sanctions, the EU is only competent for serious, cross-border crimes. These are listed in article 271 of part III of the new European Constitution: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. The list doesn’t cover the crimes that people transmitting HIV have been convicted for. Of course the list of eurocrimes can be extended – by a unanimous decision of the Council of Ministers which, if the new Constitution comes into force, requires the consent of the European Parliament as well. But it would be an enormous detour to harmonize the definition of bodily harm, manslaughter etcetera just to exclude HIV transmission from the scope of these crimes.
Moreover, and that’s my second argument, the effort might well be counterproductive. It might result in an obligation for EU member states to criminalize certain cases of HIV transmission or recklessness. The reason for this is that for many lawmakers, when it comes to the extension of criminal law, the question ‘why not?’ does mark the end of reasoning.
If harmonization of criminal law to decriminalize HIV transmission is impossible, we have to accept that the legal situations in the EU member states will continue to differ. This would not be such a problem if it wasn’t for the 2002 European Arrest Warrant. This so-called framework decision by the Council of Ministers obliges the EU member states to extradite people who are suspected or convicted in another member state. It applies to a considerable number of crimes: for every crime punishable by a one year sentence or more when the act is punishable in both states. Moreover, the requirement of double jeopardy is lifted for many crimes punishable by a three year sentence or more, including murder, manslaughter and grievous bodily harm. This means that Luxemburg, where as yet HIV transmission is not a crime, may have to extradite a national, suspected of transmitting HIV, to Finland, where he or she can be convicted for manslaughter. A court in Luxemburg is entitled (but not obliged) to refuse extradition when the act has been committed in Luxemburg or in The Netherlands, but not when it took place in Finland.
In theory, the European Commission or a member state could propose to exclude HIV transmission from the scope of the European Arrest Warrant, in the same way that adultery has been excluded. However, for the moment, chances are slim. The Commissioner-designate for Justice, Rocco Buttiglione, seems to be nominated by the Vatican rather than by Italy. And unanimity in the Council of Ministers on such a proposal is not in sight.
So the European Arrest Warrant – which, by the way, was opposed by the Greens - entails the risk of draconian penalties – up to life – in other member states. It makes unsafe sex all the more risky and might indeed contribute to undermining prevention. There’s no quick fix in the field of European criminal law.
If we want the EU institutions to play a constructive role in decriminalizing HIV transmission, another strategy seems advisable. Health workers and NGO’s should raise the issue in the context of aids prevention, which also belongs to the competences of the EU. Ideally, this should result in a recommendation by the European Commission, possibly even supported by the national ministers of Health, to think twice before applying criminal law to HIV transmission. Backed by such a recommendation, national ministers of Health could try to influence their counterparts in the Justice departments, or MP’s could take action.
Perhaps the GAP (Gay Aids Prevention) Network, mentioned by Kollen and Smit in their article, could be interesting partner in the huge lobbying effort that is ahead of us. We could build upon several elements in the declaration that the EU Health Ministers recently adopted at their Vilnius conference on fighting HIV/AIDS. Although the declaration and the underlying Commission paper do not touch upon the issue of criminalization versus decriminalization – too tricky? – these texts do include the commitment to involve civil society in reviewing the progress achieved by national strategies for HIV/AIDS prevention, and the commitment to combat social exclusion and discrimination against people living with HIV/AIDS. These commitments should not remain empty promises.