HIV and the Penal Code
Section 237 of the Penal Code was amended by the Norwegian Parliament in June 2017. The Code 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 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 HIV-positive person is cleared of criminal liability. Successful ART treatment and condom use are two such appropriate actions.
If a person has disclosed their HIV status prior to an unsafe sexual act, the person cannot be prosecuted, according to the Code. Disclosing a positive HIV status to a sexual partner is sufficient grounds for informed consent.
Furthermore, the preparatory documents to the Penal Code list 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 will make you immune to
prosecution regardless of other factors, as long as the sexual contact is consensual. However, Norwegian law does not require people living with HIV to generally disclose their status to potential sexual partners, as other sufficient preventative measures (see above) will be enough to be exempt from prosecution.
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 that so-called ‘normal sexual intercourse’ is not punishable. Section 237 only comes into effect if you fail to take your ART-treatment and have repeated unprotected sex, or if you have shown threatening or violent behaviour. Note that any sexual act without explicit consent is deemed rape under Norwegian law.
In recent years, the provisions of the Penal Code on transmission of communicable diseases have mostly been used in connection with other sex offenses such as rape and/or sexual acts towrds 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, hence not being infectious.
• You can not be prosecuted if you are on successful ART treatment.
• You can not be prosecuted if you use condoms consistently and correctly.
• Oral sex is not seen as hazardous behaviour and is exempt from prosecution.
• Informed consent to sex with a person living with HIV frees the person from criminal liability once their HIV status is disclosed.
• Exempt from punishment are also infections from sex workers and injecting drug users, as well as transmission from mother to child.
Please contact HivNorway if you have any questions regarding these topics or if you need legal assistance pertaining to your HIV status.
→ Større åpenhet rundt homoseksualitet
Da hiv kom ble det skrevet mye om homoseksualitet, siden det var menn som hadde sex med menn som ble hardest rammet av epidemien den første tiden. — Det bidro til større åpenhet, sier Arne Walderhaug, seniorrådgiver i HivNorge, i et intervju til NRK.
→ Serie bryter fordommer
—Det er viktig at historien blir fortalt, og at vi blir minnet på hvordan det var. Det kan bidra til å bryte tabu, sa HivNorges styreleder Jens Harald Älgenäs Eliassen til P2 Nyhetsmorgen i dag.