Guest pen The interpretation of the law has changed, and HIV-positive sex is no longer a crime

Understanding The importance of HIV infection as a disease has changed dramatically since HIV and AIDS came to our attention in the 1980s. The development of HIV infection into fatal AIDS can be prevented with current treatments, and the life expectancy of those infected is no longer significantly different from the rest of the population. However, HIV infection still requires treatment and the virus cannot be removed from the body.

With the development of medicine and treatments, legal assessments of infectious responsibility have changed dramatically. Unprotected sex that led to the infection could have previously led to charges of aggravated assault or even murder if and when the partner died. The provisions of the Penal Code for the protection of life and health were applied if there was even a risk of the virus becoming infected.

The criminal law review of infection situations was new. Sexually transmitted infections and exposure to the risk of infection were less frequently tested in the light of criminal law, although many diseases can be tricky.

Now it is already better seen that the fear initially caused by HIV and AIDS caused a moral panic, which many people inadvertently contributed to. HIV was described as a disease of homosexual men, whatever it was. Newspaper headlines screamed in the case of a black HIV rapist. HIV also spread among injecting drug users.

Fear of HIV coincided with our other fears, reinforcing our prejudices against dark-skinned, homosexual and drug users. Gradually, however, awareness of the nature of the disease grew and treatments evolved. Needle exchange points and associated health counseling helped to limit the progression of infections.

It began to emphasize everyone’s own responsibility and, in particular, that they had to apply for a test if they could be a carrier of the virus themselves. The early discovery of one’s own infection benefited both the person himself and his loved ones. At no point in Finland was HIV infection defined as a communicable disease of general concern, which indicates good discretion on the part of the authorities.

Take time before the latest medical knowledge is adopted in case law. Ten years ago appearedthat criminal assessments in different infection situations were inconsistent in case law and outdated. In 2015, the Supreme Court issued two significant preliminary rulings on sex situations in which the virus had not been infected. It is reasonable to assume that the decisions had a mitigating effect on lower court judgments.

Perhaps the most important question is whether an HIV-positive person always commits a crime while having unprotected sex, even if his or her care balance is good and the number of viral copies in the blood is so low that the risk of infection is approaching zero.

In one decision (KKO 2015: 83), the Supreme Court ruled that even if the virus had not been transmitted, it was a punishable danger, even though the minority and the rapporteur had dismissed the charge. Another charge of attempted aggravated assault was dismissed in a similar setting (KKO 2015: 84).

Now in September, the Supreme Court finally expressed its conviction that, according to research data, HIV is not transmitted even in unprotected sex if the balance of care is good (KKO 2021: 64). Allegations of both attempted aggravated assault and causing danger were dismissed. In its reasoning, the Supreme Court sharpened in particular that research data on the effect of drug treatment on the elimination of the risk of infection had been supplemented.

Hivin the spread must continue to be actively combated. Everyone has a responsibility in that. However, there is even less reason for moral panic.

Sex with an HIV-positive person is not dangerous as long as the disease is being treated. HIV is one disease among others. Once you know your responsibilities, you don’t even have to tell your partner about the infection.

Criminal law has less to do with it. Even the last stamps have time to evaporate.

Kimmo Nuotio

The author is a professor of criminal law and director of the Institute of Criminology and Legal Policy at the University of Helsinki.

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