S v. Procureur Général

Switzerland
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The Petitioner, S, was a man living with HIV. He was aware that he was HIV-positive since 1998 and had been undergoing treatment since then. In 2006, he began combination antiretroviral therapy. The Petitioner’s viral load had been undetectable since 2008 and he was not suffering from any other infections. The Petitioner’s doctors had assured him that he was not at risk of transmitting the disease.

Two women alleged that they engaged in unprotected sexual intercourse with the Petitioner. Both women claimed that they were unaware of the Petitioner’s HIV-positive status. The Petitioner, however, claimed that one of the women was aware of his HIV status and that he did not engage in intercourse with the other.

The Petitioner was charged with attempted serious bodily harm and attempted spread of a human disease. He was found guilty at trial and sentenced to 18 months in prison and pay a judgment fee of 200 Swiss francs. On appeal, the custodial sentence was reduced to six months.

The Court found that petitioner was not guilty of attempted serious bodily harm and attempted spread of HIV.

The Court noted that the Federal Court had established that infection with HIV constituted a serious, life-threatening bodily harm. It explained that an individual who is aware that he is HIV-positive and, knowing the risk of transmission, has unprotected sexual relations is guilty, at least by possible deceit, of attempted serious bodily harm. The Court stated that there is no violation if the individual’s sexual partner “freely consents” to engaging in unprotected sexual relations. It stated, however, that such consent did not preclude guilt for attempting to spread a human disease, as this provision was meant to protect public health.

The Court observed that recent medical research indicated that an individual adhering to effective antiretroviral treatment whose viral load was undetectable and who was not suffering from other infections does not transmit HIV through sexual contact. The Court further noted testimony from a professor who indicated that the risk of transmission under such circumstances was “too low to be scientifically quantified.” Since it was established that the Petitioner was undergoing antiretroviral treatment, did not have a detectable viral load, and was not suffering from other infections, the Court acquitted the Petitioner on the counts of attempted serious bodily harm and attempted spread of a human disease.

“When a party who is aware of his/her partner's infection and the risks of transmission freely consents to having unprotected sexual relations with him/her, there cannot be conviction for violating section 122 of the Penal Code. However, the victim's consent does not preclude the violation of section 231 of the Penal Code, since the latter provision protects public health.” (p. 4)

“Lorsque celui qui, connaissant l'infection de son partenaire et les  risques  de transmission, consent librement à entretenir avec lui des relations sexuelles non protégées, il ne peut y avoir de condamnation pour infraction à l'art. 122 CP. Par contre, le consentement de la victime ne fait pas obstacle à la commission d'une infraction à l'art. 231 CP, cette dernière disposition protégeant la santé publique.”

“The most recent medical doctrine considers that a contaminated person not suffering from any other sexually transmissible disease and adhering to antiretroviral drug treatment to the letter, enabling him/her to have an undetectable viremia, does not transmit the virus through sexual contact.” (p. 4)

“La doctrine médicale la plus récente considère qu'une personne contaminée ne souffrant d'aucune autre maladie sexuellement transmissible et suivant à la lettre un traitement médicamenteux antirétroviral lui  permettant d'avoir une virémie indétectable,  ne  transmet  pas  le  vtrus  par  des  contacts  sexuels.”

(English quotes from the translation produced by Canadian HIV/AIDS Legal Network)

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