New provisions of the penal code

Section 237 of the Penal Code was amended by the Norwegian Parliament earlier this month. The Act now clearly states that a person living with HIV and having taken adequate steps to prevent transmission, like using a condom or being on successful ART treatment, cannot be prosecuted.

Section 237 of the Penal Code was amended by the Norwegian Parliament in June 2017.

Section 237 of the Norwegian Penal Code criminalizes transmitting a hazardous communicable disease. The new provisions do not make reference to The Communicable Disease Control Act that lists a number of communicable diseases that is hazardous to public health. Hence, people living with HIV who are on antiretroviral treatment (ART) or who use a condom can no longer be prosecuted.

In the amended provisions, transmission of HIV or exposure to HIV may still be criminalized. However, if appropriate action has been taken to prevent infection, the person is cleared of criminal liability. ART treatment and condom use are two appropriate actions.

If a person has disclosed his or her HIV-positive status prior to an unsafe sexual relation, the person cannot be prosecuted, according to the Act. Disclosing a positive HIV status to a sexual partner equals consent.

Furthermore, the preparatory works lists further aspects that will exempt a person from prosecution. The Ministry of Justice underlines that any person who acts responsibly to avoid infecting another person shall not be prosecuted. Disclosing your HIV status to a (potential) sex partner also make you immune to prosecution. However, Norwegian law does not require people living with HIV to generally disclose their status to potential sexual partners.

To be proven guilty of an offence, the prosecuting authority has, according to the preparatory works, to prove an act of gross negligence. This means so called normal sexual intercourse is not punishable. Section 237 only comes into effect if you fail to take your ART-treatment and have much unprotected sex or have shown a threatening or violent behaviour.

In recent years, the provisions of the Penal Code on transmission have been used in connection with other sex offenses such as rape and sex with minors. In one known case, a person charged with exposing someone to the risk of transmission was acquitted due to being on successful ART treatment, and hence not being infectious.

In summary:
• Cannot be prosecuted if on successful ART treatment
• Cannot be prosecuted if using condoms
• Oral sex is not seen as hazardous behaviour
• Consent to sex with a person living with HIV frees the person from criminal liability
• Exempted for punishment are also infections from sex workers and injecting drug users, as well as transmission from mother to child.

HivNorway welcomes the amended penal code.