Counselling on a criminal complaint

Under very specific circumstances, the (potential) transmission of an HIV infection can be interpreted as a criminal offence (website only available in German). If charges are brought, it is usually a case of infection through sexual intercourse. Even if no infection has taken place, this can be regarded as an attempt to commit a criminal offence. But what if the person reported knew nothing about their HIV infection? Or if it was agreed not to use condoms? And does it also count if no HIV transmission is possible at all because the person with HIV is taking medication that successfully suppresses viral replication? We explain exactly what is important.

Legal situation in Germany

In many countries there are special penal provisions for the transmission of infectious diseases. Germany is different. Here, infecting another person with HIV can be treated as an offence of bodily harm - specifically as dangerous bodily harm (Sections 223, 224 StGB) in the form of damage to health by means of ‘life-threatening treatment’ or the ‘introduction of dangerous substances’. In Germany, even the attempt to commit such an offence is punishable.

Criminal liability for the transmission of HIV is only assumed under certain conditions: Firstly, the person must have acted ‘intentionally’ and secondly, ‘unlawfully’.

What is meant by ‘intent’ in relation to HIV infections?

When a court examines whether someone has acted wilfully, it looks at the question of whether they knew what they were doing and either wanted it or accepted the result. The latter is called ‘conditional intent’.

The decisive factor is therefore what is going on ‘in the head’ of the accused. Since a court cannot look into the minds of others, it tries to draw conclusions about the inner attitude by examining what happened during the event itself and before or after it.

Knowledge of the HIV infection

Anyone who does not know that they are HIV-positive can neither ‘want’ nor ‘condone’ the infection of another person.

However, anyone who has sex without a condom and knows that they are HIV-positive may be liable to prosecution for attempting to cause grievous bodily harm, even if no infection occurs.

Condom

Objectively, the use of a condom during sex means that the risk of infecting another person with HIV is negligible. In addition, this also allows conclusions to be drawn about the ‘inner attitude’: If a person with HIV uses condoms during sex, they make it clear that they do not ‘want’ to infect anyone and do not ‘approve’ of infecting others. After all, they are using generally recognised measures to avoid infection. Therefore, if a condom is used ‘properly’ during sex from the outset, criminal liability cannot be assumed due to a lack of intent.

Treatment as prevention

It has been known for many years that people with HIV who have a ‘viral load below the detection limit’ (i.e. their HIV medication suppresses HIV replication) cannot infect anyone during sex. The prerequisite for this is that the person concerned consistently takes the HIV therapy and has it checked regularly. This has now also been recognised by law enforcement agencies and the courts.

Most people with HIV are successfully treated with HIV therapy. They know that this means there is no longer a risk of infection for others. Anyone who has this information and knows that nothing can happen to their partner is not acting wilfully. I cannot ‘want’ or ‘condone’ something that I know is impossible in a criminal law sense.

What can you do in the event of a criminal complaint?

Time and again, people with HIV are accused of infecting sexual partners with HIV or at least exposing them to a risk, and criminal investigations are initiated as a result. This is usually based on a criminal complaint. If the police or public prosecutor's office become aware of such a case, they must start an investigation.

An accused person is not obliged to co-operate in the investigation. It is important to remain calm and, for example, not to say things to the police that could later be used against you.

The accusation of having exposed a person to a risk of infection or even having infected them is serious. Therefore, expert advice and legal support should be sought wherever possible. You have a right to this at every stage of the proceedings.

Local Aids service organisations (Aidshilfen) or the HIV-related discrimination contact point can help you find a lawyer with experience in the field of HIV.

If a complaint has been threatened, a moderated discussion can be helpful. The contact point or a local Aids service organisation (Aidshilfe) can provide support here.

„No one is immune from being accused. What you can protect yourself from is judgement."

Jacob Hösl, lawyer