From Europe: Tactics to stem the tide of criminal prosecutions

Robert James presented an analysis of cases in the Netherlands, England and Switzerland.  In each of these jurisdictions, the laws used are not specific to HIV but are general laws against assault or the transmission of disease.

Moreover, in each country there had previously been a considerable number of convictions, but identification of an appropriate tactic to use has led to an acquittal in a specific case and a subsequent reduction in the number of future convictions. 

In the Netherlands, the country's supreme court ruled in 2005 that if it were to use an existing law in order to convict a man for exposure to HIV, this would undermine the principle of the separate of powers.  This principle states that whereas the country's parliament is responsible for making new laws, the court's role is to interpret the law.  The court decided that to use the existing law for cases concerning a person with HIV having unprotected sex (exposure) would overstep its own remit.  The question had to go back to parliament, who would also need to consider the interest of public health in their legislation. 

In England, a court accepted expert scientific testimony which highlighted the limitations of phylogenetic analysis (the scientific evidence about a comparison of the viral strains of the complainant and the accused).  Whereas prosecutors had previously presented phylogenetic analysis as providing definitive proof, it became established that two viral strains could be closely related without there being any uncertainty about who had infected who.  This tactic is relevant in transmission (rather than exposure) cases.  

In Switzerland, the Geneva Court of Justice ruled that a person was not guilty of unlawfully exposing a sexual partner to HIV because the accused had an undetectable viral load and was fully adherent to treatment.  In these circumstances, the objective risk of transmission was judged to be so low that it was hypothetical.  In this decision, the court was aided by the Swiss Federal AIDS Commission's statement on transmission risks and by expert testimony from one of its authors.  This tactic is relevant in exposure (rather than transmission) cases.

Robert James recommended that, while it was not necessary for national medical bodies to make declarations stating that an undetectable viral load means that a person is uninfectious, it would be helpful for authorities to state that an undetectable viral load (with full adherence and no sexually transmitted infections) is "as good as condom use".  Activists could encourage their national medical organizations to make such statements.  

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