HIV Transmission: Criminalisation
| DOI | 10.1350/jcla.2006.70.6.485 |
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| Author | Willemijn van Kouwen,Karin Bruinenberg |
| Subject Matter | Supreme Court of the Netherlands, Criminal Division (Hoge Raad Der Nederlanden, Strafkamer) |
Supreme Court of the Netherlands,
Criminal Division (Hoge Raad der
Nederlanden, Strafkamer)
HIV Transmission: Criminalisation
Judgment of 25 March 2003, Case No. LJN AE9049
Judgment of 18 January 2005, Case No. LJN AR1860
The defendant was convicted of co-perpetration of rape and attempted
manslaughter. Proceedings started in Leeuwarden, where the public
prosecutor instituted criminal proceedings for those offences against a
man, aged 50, who allegedly—joined by a co-perpetrator in one case—
had unprotected oral and anal sex with two minors, aged 13 and 16,
with the use of force on one occasion, while being infected with HIV
and, according to his own statements, aware of his infection and the
risks concerned when having unprotected sex.
The case, consisting of multiple decisions by various courts including
two judgments of the Supreme Court (Hoge Raad), concerns the estab-
lishment of the ‘conditional intent’ to commit a crime with regard to the
transmission of HIV, i.e. the criminal liability of an HIV-infected person
in respect of unsafe sexual contact. (Article 82 of the Dutch Criminal
Code brings HIV transmission within the meaning of Articles 300–303
concerning abuse and the (intentional) infliction of grievously bodily
harm, while Article 45 penalises the ‘criminal attempt’. This means that
actual transmission does not need to occur for HIV-risk behaviour to fall
under the scope of the Criminal Code.) Conditional intent (voorwaarde-
lijke opzet) can be established when the defendant exposes himself
willingly and knowingly to the ‘considerable chance’ (aanmerkelijke
kans) that a certain consequence will result from his actions. Conditional
intent consists of three elements: first, the offender has to be aware of
the possible consequence; secondly, there is a ‘considerable chance’ that
this consequence will occur; thirdly, the offender acknowledged the
chance of occurrence of that consequence willingly and knowingly. One
of the elements of conditional intent, the concept of ‘considerable
chance’, was heavily debated by the different courts involved.
At first instance, the defence stated that a ‘considerable chance’ that
certain consequences would occur could not be derived from the acts of
the accused, because of the small possibility—based on statistical
research—of contracting HIV when having unprotected sex, and after
infection with HIV, with AIDS. However, the Court of First Instance in
Leeuwarden ruled that the idea of ‘considerable chance’ is not merely an
objective notion, settled by statistics, but a concept to be determined by
the extent of social permissibility of the consequences that may result
from performing certain acts. The Court of Appeal in Leeuwarden
concurred with the establishment of conditional intent by the Court of
485
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