Court Approves Prosecution for Safer Sex
30 September 2015
Rechtskomitee LAMBDA urges Minister of Justice to decriminalise safer sex
The Vienna Appeals Court recently delivered a judgment approving the prosecution of Hiv-positive persons for abiding to the state propagated safer sex rules. Rechtskomitee LAMBDA (RKL) calls for immediate statutory clarification that obeying state sponsored rules constitutes no criminal offence. It said being upset that this matter of course has to be called for.
In 2012 an hiv-positive man had to stand criminal trial in Vienna for practising safer sex propagated by the state and by the publicly funded aids service organisations. The prosecutor had indicted him for “oral sex without ejaculation” (!), exactly what has been propagated as safer sex for decades.
The prosecution relied on Art. 178 of the Criminal Code (“wilful endangering of human beings by transmittable diseases”), an offence which for two decades had been used to convict persons (mostly women) even for sexual intercourse using a condom.
1997 the Supreme Court at last held that sexual intercourse with a condom is in accordance with the safer sex rules and no criminal offence (OGH 25.11.1997, 11 Os 171/97). And 2003 it was only after years of reopening-proceedings that the Graz Appeals Court had quashed the conviction of an hiv-positive man for oral sex without ejaculation (Carinthian Oral Sex Case: http://www.rklambda.at/archiv/news_safersex.htm).
Already back these days Austria´s then Minister for Health, Herbert Haupt, had stated, “that criminal persecution and conviction of hiv-positive persons for sexual contacts with hiv-negative persons in spite of them complying with the health authorities’ and aids-service-organisations´ safer sex rules run counter to effective hiv- and Aids-prevention (2313/AB XXI.GP, http://www.parlament.gv.at/PAKT/VHG/XXI/AB/AB_02313/).
Apart from the fathomless perfidiousness of one arm of the state (the justice system) persecuting and convicting people for doing exactly what the other arm of the state (the health authorities) asks them to do. A grave violation of justice and fundamental human rights.
Threat to effective hiv-prevention
Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of hiv-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org/sites/default/files/media_asset/20130530_Guidance_Ending_Criminalisation_0.pdf; http://www.unaids.org/sites/default/files/en/media/unaids/contentassets/dataimport/pub/basedocument/2008/20080731_jc1513_policy_criminalization_en.pdf; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).
Accordingly the Austrian Minister of Justice in 2010 on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors had been informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).
Nevertheless in spring 2012 a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And in December 2012 in Vienna the prosecutor had indicted the man mentioned above explicitly even for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities´ and the aids-service-associations´ (http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html). Also in Graz a man faced a similar prosecution (www.RKLambda.at).
Licence to persecute hiv-positives
In both cases the courts acquitted the defendants. In the Vienna oral sex case the judge explicitly said that the man behaved entirely properly (http://kurier.at/chronik/wien/hiv-ambulanz-im-wiener-akh-leidet-unter-personalmangel/1.926.101#section-1926299 http://derstandard.at/1355459879510/Safer-Sex-Regeln-eingehalten-Freispruch-fuer-HIV-Positiven-in-Wien). Not always however judges are as rational as these two judges, and even after acquittal the trauma of criminal prosecution and trial remains, as the costs for the defense do.
And now the Vienna Appeals Court licensed prosecutors to prosecute people for abiding to the state sponsored safer sex rules. Notwithstanding the “up to now unique” Supreme Court decision of 1997 there would not yet be constant case-law, that sex with a condom and obeying safer sex rules would not constitute a criminal offence (!). The prosecution for obeying a state sponsored code of conduct therefore was justifiable, the court said (OLG Wien 13.08.2015, 14 R 111/15v).
„We are urging the Minister of Justice to stand by the 2010 assurances and bring about immediate statutory clarification that obeying state sponsored rules constitutes no criminal offence“, says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “UNAIDS for years has been warning that such criminalization of hiv-positive people endangers effective hiv-prevention and thereby public health”.