NOU 2012: 17

Om kjærlighet og kjøletårn

3.9 The Commission’s assessments and proposals

Chapter 11 contains the Commission’s assessments and proposals.

The main issue addressed by the Commission is whether the transmission of infection or the exposure of another person to the risk of infection should (still) be a criminal offence and, if so, under what circumstances.

At the start of chapter 11, the Commission discusses the question of whether transmitting infection to another person should be a criminal offence at all. The Commission points out that the harm principle was adopted as a starting point in the preparation of the 2005 Penal Code, i.e. that it is primarily behaviour that causes harm or the risk of harm to interests that should be protected by society that should be subject to a criminal sanction. Even if a type of behaviour, such as the transmission of infection, has harmful consequences, a closer assessment must nonetheless be undertaken of whether a criminal penalty should be applied.

It is difficult to provide a definitive answer to the question of whether the transmission of infection is of such a nature and such seriousness as to justify the application of a criminal sanction without basing the assessment on certain assumptions regarding the nature of the diseases in question, the mode of transmission, the parties’ individual circumstances and other circumstances that may be relevant.

The Commission mainly uses the term «transmission of infection» to denote infection that is transmitted (directly or indirectly) from person to person, and the term «spread of infection» to refer to infection that is spread by air, water, food, blood and blood products, etc., even though these expressions are not exclusively used, in either medical terminology or in ordinary language, for the respective modes of transmission. Transmission of infection and spread of infection are discussed separately to a certain extent, since different considerations apply to each of these two categories.

In the Commission’s view, any criminal regulation of (direct or indirect) person-to-person transmission of infection, for example in connection with sexual activity or via objects, should be limited to diseases of a serious nature. If infection is spread by air, water or food, etc., it could potentially cause a great deal of harm as it could affect a very large group of people. It is possible, therefore, that one should not require the same level as regards the seriousness of the disease for the individuals affected. Moreover, these are transmission routes against which individuals are less able to protect themselves.

The Commission points out that the seriousness of the harm caused also has a bearing on the assessment of responsibility for prevention and the moral blameworthiness of the person who commits the act exposing another person to the risk of infection, and on the limitations which society should place on individuals’ general freedom of action.

The Commission has discussed the public health argument, which is a pivotal element of the rationale for the current criminal regulation of transmission of infection and exposure to risk of infection. In addition to protecting public health, however, the provisions also clearly contain an element of individual protection. Thus the Commission has not attached importance solely to public health considerations. In addition, the Commission members have divided opinions regarding the impact on public health that the penal provisions in question could conceivably have. There is limited documentation of the effect of criminal regulation, both as regards its contribution towards preventing infection and as regards unintended consequences which are alleged to have the opposite effect.

The Commission is of the opinion that the Communicable Disease Control Act and the Public Health Act are key to safeguarding public health, supplemented by the non-judicial instruments that are also of pivotal importance. These instruments are of far greater importance than penal provisions for protecting the population against serious communicable diseases. However, Norway and several other countries have a tradition whereby infection transmission and exposure can be prosecuted, on the basis of penal provisions in the general criminal legislation which are intended to protect both public health and individuals.

In the work on the 2005 Penal Code, it was pointed out that criminal sanctions should only be applied if other sanctions do not exist or will not be sufficient (in conformity with the principle of subsidiarity). The Commission emphasises the importance of infection control counselling and other follow-up by public health and care services, etc., and points to the need for clearer guidelines for cases where the infected person fails to follow the infection control counselling that has been provided. Infected persons should, on repeated occasions, be given sufficient information and necessary psychosocial support to enable them to handle the risk of infection properly, and assistance in dealing with any underlying problems such as mental illness or substance use. However, the Communicable Disease Control Act does not provide for any suitable means of dealing with infected persons who, after repeated requests and counselling, do not comply with the recommendations on such matters as «safer sex». The Commission does not find it appropriate to propose that the Communicable Disease Control Act be supplemented with administrative or other sanctions for persons who fail to follow the advice they are given, and does not see any other relevant forms of sanction as an alternative to a penalty.

In the Commission’s view, the infected party has a special responsibility for preventing onward infection. An infected person who is aware of his or her infection status and has received infection control counselling therefore has reason to take steps to ensure adequate protection against infection.

Everyone, including those who are not infected or do not know that they are infected, must share responsibility for avoiding the transmission of infection based on a general knowledge of communicable diseases and modes of transmission. This applies in particular to diseases against which protection can be assured by simple means, such as by using a condom.

Nevertheless, the Commission’s majority – 11 out of 12 members – are of the opinion that the circumstances in a number of cases, including many of the cases adjudicated under section 155 of the 1902 Penal Code, are such that the infected party has acted in such a blameworthy manner as to make a criminal sanction both right and reasonable. This is particularly the case where the infected person has deliberately given erroneous or misleading information about his or her infection status, perhaps over a long period of time, thereby giving the other party no incentive to ensure protection against infection. This increases the subjective blameworthiness of the infected person, and thus the justification for punishment.

The same majority also points out that there has been no general public reaction to the present penal provision, and that both the statutory decision to increase the penalty in 2003 and the new penal provisions in 2009 were adopted unanimously. Furthermore, none of the judgments of which the Commission is aware suggest that the penal provisions are deemed to be discriminatory or unreasonable. The criminal regulation thus seems to be in keeping with the general sense of justice. Nonetheless, the Commission considers that importance must be attached to the fact that the current provisions are criticised by special-interest organisations, individuals and some experts, and that this criticism was part of the reason for appointing the Commission.

Of the majority’s 11 (out of 12) members, nine members emphasise that decriminalisation could be perceived as an indication that infecting other persons or exposing other persons to the risk of infection is no longer such a serious act. The growing number of persons recently infected with HIV could suggest that there is a view prevailing in certain circles that it is no longer as important to avoid HIV infection because medication can prevent HIV-positive persons from developing AIDS. The Commission’s majority finds that it would be ill-advised to reinforce this impression by completely decriminalising such acts or repealing the special penal provisions that govern the transmission of infection and exposure of another person to the risk of infection. The other three Commission members note that the current section does not appear to have had a preventive effect, and see a need to intensify preventive efforts, including more active use of the provisions of the Communicable Disease Control Act, in order to reach the groups concerned.

The Commission’s majority – 11 out of 12 members – otherwise observe that the potential repeal of the existing criminal provisions governing infection transmission and exposure does not automatically mean that such acts will not be punishable. The state of the law will also depend on which other penal provisions may be applicable.

After an overall assessment, the Commission’s majority finds that under Norwegian law, the transmission of infection to another person should, on certain conditions, remain a criminal offence, and that there should be special penal provisions in Norwegian law that govern the transmission of infection and, in the view of 9 out of 11 members of the majority, exposure of another person to the risk of infection, instead of applying the general penal provisions relating to bodily harm, etc.

In the opinion of one member, no special penal provision should be laid down with regard to person-to-person transmission of infection. Any criminal prosecution of such an act would then have to be instituted under the general provisions governing bodily harm. However, this member does not consider it appropriate to apply these provisions either in the case of such transmission, unless the perpetrator acted with the purposeful intent to infect, and infection was in fact transmitted. The rationale for this standpoint is set out in chapter 10.

The Commission’s majority – 11 out of 12 members – finds that there should still be a separate penal provision for the person-to-person transmission of a serious communicable disease. The majority attaches importance to the possibility that this affords of regulating the detailed conditions for conviction according to the individual nature of the field, including the legal significance that should be given to infection prevention measures and the consent of the aggrieved person, which would be virtually impossible if general provisions governing crimes of violence were to be applied. The greater foreseeability that can be created by establishing a special penal provision is assumed to be very important to those concerned. A separate penal provision which clearly defines the circumstances that exempt the perpetrator from a criminal penalty will make it easier to foresee consequences, thereby making the state of the law easier to understand.

It is difficult to say whether the courts would in practice establish uniform jurisprudence in this field without penal provisions specifically governing infection transmission and exposure. In the Commission’s view, it could in theory be difficult to convict persons who have infected other persons or exposed other persons to the risk of infection, even in cases where the person concerned has behaved in a blameworthy, extremely indifferent or reckless manner. The standard of guilt under the ordinary provisions governing bodily harm is intent. A great deal of evidence will be required to prove subjective guilt in the form of intent to transmit infection, which would be a requirement for conviction whether the case involves the actual transmission of infection or the exposure of another person to the risk of infection. Only in the case of actual infection transmission will it be possible to convict the perpetrator of negligently causing serious harm to body or health under section 280, and only if it can be proved that it actually was the perpetrator who transmitted the infection.

Moreover, it is the majority’s assessment that it will not have much bearing on the degree of stigmatisation experienced by the infected person whether prosecution proceedings are instituted under the general penal provisions governing bodily harm and the like, or under special penal provisions governing the transmission of infection and exposure of another person to the risk of infection, but without stating any specific diseases.

The Commission emphasises that – regardless of whether the transmission of infection is subject to special regulation or whether prosecution proceedings are instituted under other penal provisions – it is a prerequisite that such prosecution complies with the standards established by the human rights instruments and other universal principles related to the rule of law, including the right to a fair trial, proportionate sentencing and equality before the law.

The Commission discusses which modes of transmission and which diseases should be covered, and whether only the transmission of infection or also the exposure of another person to the risk of infection should be regulated by criminal law. It also discusses standards of guilt and how much importance should be attached to infection control measures and other factors that affect the risk of infection, as well as the consent of the person exposed to the risk of infection. (See further information on these topics below.)

Of the Commission’s majority of 11 out of 12 members who consider that a separate penal provision relating to the transmission of infection should be maintained, a majority of nine members find that improperly exposing other persons to the risk of infection should be punishable even if no disease or harm has been inflicted on the aggrieved person. This should also be possible in cases other than those in which purposeful intent to transmit infection has been shown. The risk of infection and transmission of infection arise from the same type of acts. Only by ensuring that the penal provision also covers exposure of another person to the risk of infection will it promote a change in behaviour and thereby contribute to infection control. Whether the individual act that causes a risk of infection will lead to the other party being infected cannot be foreseen, even if the parties may to some extent know of factors of significance for the magnitude of the risk of infection. The majority also gives some weight to evidentiary considerations. The majority proposes that the exposure of another person to the risk of infection should be punishable in specific types of cases; see the paragraphs below on the formulation of the penal provision.

Of the 11 members of the Commission who consider that there should be a separate penal provision governing the transmission of infection, two members find that only the actual transmission of infection should be liable to a penalty. They refer, among other things, to the fact that the general risk of HIV infection is low, particularly in the case of patients who are receiving effective treatment. It is difficult to determine the infection risk in individual cases, but a penal provision that covers any act that exposes another person to the risk of infection will be too broad in scope as it will also cover cases where the risk of infection is close to theoretical. The minority does not fear that the decriminalisation of infection exposure will lead to more infected persons having unprotected sex. At the same time, it will be a signal to everyone that they have an independent responsibility for their own health.

Attention is also drawn to certain special situations in which the Commission unanimously finds that caution should be generally exercised with regard to the institution of criminal proceedings. These situations include mother-child transmission in connection with pregnancy, childbirth and breastfeeding, cases where both parties were already infected, infection in connection with drug users’ sharing of injection equipment and in connection with sex work, particularly if the sex worker is pressured to engage in unprotected sex.

The Commission has unanimously concluded that the transmission of infection by air, water and food, etc., should be governed by a separate penal provision.

Accordingly, the Commission’s majority proposes amending sections 237 and 238 of the 2005 Penal Code, as a result of which there will be two separate penal provisions: section 237 governing person-to-person transmission of infection, and section 238 governing the spread of infection by air, water, food, etc. The Commission’s draft statute is based on the 2005 Penal Code, since the latter will replace the 1902 Penal Code within a few years. Individual provisions may be set in force at an earlier date if desired.

The Commission’s draft penal provision relating to the person-to-person transmission of infection (section 237) reflects the view of the majority (11 out of 12 members), although two of these Commission members take the view that the draft should only cover the transmission of infection, but otherwise endorse the draft. In the view of the majority (9 out of 12 members), the draft provision should cover both transmission of infection and exposure of another person to the risk of infection, but should not be applicable to every case of infection exposure. Under the draft provision, it is required that the perpetrator exposes two or more persons to the risk of infection or exposes another person to such risk on repeated occasions or through reckless behaviour. A single «slip-up», for instance in the form of unprotected sex, will thus not be punishable unless the perpetrator has behaved recklessly in another manner. After such an incident, the infected person will have had time to reflect on the matter and has every reason to implement infection control measures on the next occasion. The penal provision is particularly designed to apply to persons who display behaviour that places other persons at risk of infection, either several persons or the same person on repeated occasions. In situations in which the parties are not peers, exposing the subordinate party to the risk of infection could easily be deemed to be reckless behaviour even if exposure has only occured on a single occasion. Chapter 11 and the comments in chapter 13 contain a further discussion of how the draft is to be interpreted.

The draft provision is limited to communicable diseases that cause significant harm to body or health. An assessment must be made on a general basis of whether a disease has such consequences.

In the Commission’s draft, the standard of guilt is determined to be intent and gross negligence. In the Commission’s opinion, the direct or indirect person-to-person transmission of infection should not be punishable when only simple negligence has been shown.

The draft contains a provision to the effect that consent exempts a person from liability to a criminal penalty in the case of infection transmitted by sexual activity. In order for consent to have an exempting effect, such consent must be given in the presence of health care personnel in connection with infection control counselling. These formal requirements are intended to ensure that the consent given is informed and well-considered, and that the relevant facts relating to the granting of consent are established and that the consent is given after proper infection control counselling. There is no requirement of a special connection between the parties, as is the case under the provision adopted in the 2005 Penal Code.

Furthermore, the draft statute contains a provision to the effect that no penalty is applicable when proper infection control measures have been observed. This means, for example, that sexual activity with proper use of condoms will not be punishable, even though the use of a condom does not assure full protection against infection transmission even when used consistently. This exemption applies regardless of any disclosure of infection status and any consent that may have been given by the partner. This is a codification of jurisprudence in this field. The provision is not limited to infection transmitted by sexual activity. The exemption from a criminal penalty does not cover medical treatment that reduces the risk of infection. As regards HIV, it is noted that even if treatment reduces the risk of infection, there is not enough scientific documentation to determine precisely the magnitude of the risk of infection, particularly as far as individual cases are concerned. The degree of risk of infection can vary even in the case of patients under effective treatment, and is contingent on a number of circumstances beyond the control of the parties, and especially the infected person’s partner. The non-infected person’s susceptibility to infection also varies. Moreover, by using protection against infection, such as a condom, the infected person actively ensures or sees to it that measures are implemented to protect his or her partner.

The importance of medical treatment that mitigates the risk of infection must – in the light of continued medical development and new scientific findings – be considered under the question of whether there is a risk of infection in the legal sense, an approach already adopted in the preparatory works relating to sections 237 and 238 of the 2005 Penal Code. In the Commission’s view, the knowledge available about the risk of infection at any given time associated with an HIV-positive person under medical treatment remains too uncertain to conclude that the description of the offence in the penal provision is not met. However, the probability that the risk of infection is reduced may, depending on the circumstances, be given weight during sentencing, as shown by examples in case law under section 155 of the 1902 Penal Code.

In light of the above, the draft statute constitutes a certain degree of decriminalisation in relation to current and adopted penal provisions with regard to person-to-person infection transmission and exposure. Acts covered by the majority’s formulation of the penal provision in section 237 of the draft statute largely correspond with jurisprudence under section 155 of the 1902 Penal Code. The amendments proposed by the Commission clarify the state of the law and render it more foreseeable. It is primarily behaviour that is acceptable or appropriate in the context of infection control that will be decriminalised. The Commission has sought to formulate the penal provision in such a way that it encourages such behaviour.

The Commission also discusses maximum penalties and sentencing.

The maximum penalties in the draft statute are differentiated according to the degree of culpability and whether the violation is aggravated, an aspect that is specially regulated in a separate paragraph. When determining whether the transmission of infection is aggravated, particular importance shall be attached to whether the infection has caused loss of life, has been transmitted to two or more persons, or has been transmitted through particularly reckless behaviour. The maximum penalty for intentional violation is a fine or a term of imprisonment not exceeding three years, while the maximum penalty for grossly negligent violation is a fine or a term of imprisonment not exceeding one year. In the case of aggravated violation, the maximum penalty is a term of imprisonment not exceeding six years for both intentional and grossly negligent violations. This largely corresponds to the maximum penalties in sections 237 and 238 of the 2005 Penal Code, except that the draft statute has no particular maximum penalty for (grossly) negligent aggravated violations. Section 155 of the 1902 Penal Code prescribes general maximum penalties of six years for intentional violations and three years for negligent violations. In its comments, the Commission envisages somewhat milder sanctions, under certain circumstances, than those found in current jurisprudence related to section 155 of the 1902 Penal Code. In the Commission’s view, a fine and/or a suspended sentence of imprisonment may be appropriate in special cases.

The Commission points to several factors to which weight should be given in sentencing. In addition to objective factors related to the act(s) that expose(s) another person to the risk of infection and the perpetrator’s individual circumstances, consideration may, depending on the circumstances, be given to the aggrieved person’s own behaviour, such as whether the latter was aware of the concrete risk of infection and nonetheless exposed himself or herself to it, but did not give consent that exempts the perpetrator from a criminal sanction.

The Commission’s draft of section 238 of the 2005 Penal Code relating to the spread of infection by air, water, food, etc. is unanimously endorsed by the members. This penal provision may also cover infection spread by transfusion of blood or blood products.

The draft section 238 has not been limited on the basis of the seriousness of the disease since the diseases can reach a large number of people by such modes of transmission, and thus have serious consequences for society even if the threat to the health of individual persons is not very serious.

The Commission’s draft section 238 also covers simple negligence. The Commission deems this to be reasonable in the circumstances. The spread of infection will often occur in connection with business or other organised activities, and can largely be prevented if the enterprise complies with food legislation or public health legislation. In view of the significant potential harm such spread of infection can cause, the maximum penalties in the draft have been set at 15 years for intentional violation and six years for negligent violation.

The Commission assumes that the police and prosecuting authorities will allocate resources to the follow-up of cases involving the serious spread of infection, where it will be appropriate to institute prosecution proceedings in addition to any administrative sanctions imposed by supervisory bodies in the field in question, such as the Norwegian Food Safety Authority.

Infection may also be spread with purposeful intent, possibly for terrorist purposes, and (the draft of) section 238 should thus be seen in conjunction with other penal provisions. The Commission proposes statutory amendments that entail incorporating section 238 into section 131 of the 2005 Penal Code on terrorist acts and section 241 on conspiracy to commit certain types of criminal offences against public safety, together with section 239 on poisoning causing general danger to life or health and section 240 on serious environmental crime. The Commission further proposes that the duty to avert offences under section 196 shall include the spread of infection that is hazardous to public health under section 238.

In chapter 11, the Commission also discusses the relationship between criminal regulation and communicable disease control legislation. The Commission does not propose any changes in this relationship or amendments to the Communicable Disease Control Act. However, the Commission draws attention to the potential for improvements in the application of the Communicable Disease Control Act. The Commission proposes that guidelines be prepared which address several of the matters raised by the Commission, thereby promoting better, more uniform application of the Act.

The Commission recommends strengthening sexual education, particularly at lower secondary school level, with special focus on sexual health and sexually transmitted diseases. Moreover, it points out that the concept of infection control assistance is to be interpreted very broadly and not simply consist of health services relating to the communicable disease. It is important also to provide psychosocial support and other assistance to infected persons in order to avoid their infecting other persons, and to non-infected persons who are at risk of being infected. Such assistance includes treatment for mental illness or substance use, and care services in connection with social problems.

The Commission also discusses the need for intensified infection control counselling when infected persons do not comply with the counselling they have received. Physicians have a duty to report such cases to the chief municipal medical officer. However, the Act does not specify how the latter is to follow up on such cases, and practice seems to vary.

The Commission also points to certain factors related to health care personnel’s duty of confidentiality, their right to and duty of disclosure. This applies in particular in connection with the provision of health care to infected persons for illnesses other than the communicable disease, if the infected person himself or herself does not disclose his or her infection status, and in cases involving infected children in day care centres.

Furthermore, the Commission states that prison inmates should be given access to clean injection equipment, which is also a form of infection control assistance.

The Commission also addresses the topic of infection control assistance for immigrants, including asylum seekers, and proposes certain measures that can help to improve follow-up in this field. The incidence of HIV and certain other serious communicable diseases is higher in some immigrant communities than among the general population. Immigrants should be given general information on communicable diseases and infection control in a variety of contexts. Work in this field presents special challenges, not only due to language and cultural differences. One factor is that because many immigrants, especially asylum seekers, move several times, testing may be postponed and efforts to follow up on diagnosed persons may be inadequate. The Commission is of the opinion that persons who come to Norway, particularly from highly endemic areas, should be offered HIV testing at the earliest possible opportunity. It is important to ensure that infected persons receive good infection control counselling adapted to their needs, and that they are followed up if they move. It is important that health services allocate sufficient resources for this work. In order to follow up on HIV-positive immigrants, further consideration should be given to appointing HIV care coordinators; one possibility is to assign the task of coordinating HIV-related efforts to tuberculosis care coordinators.

In chapter 11, the Commission also proposes adding a new provision, section 157a, to the Criminal Procedure Act authorising the examination of suspects in sexual offence cases to ascertain their infection status with a view to clarifying as quickly as possible whether the aggrieved person has been exposed to a concrete risk of infection. The aggrieved person has been subjected to considerable strain in connection with the actual offence, and it will be an additional burden to have to wait a long time for such clarification. The Commission finds it doubtful that the requirements in section 157 of the Criminal Procedure Act permit, under current law, routine examination of the suspect’s infection status in connection with sexual offences, or examination based on a request from the aggrieved person. Under the Commission’s draft section 157a, a physical examination of the suspect may be carried out without any requirement of specific reasons for believing that the suspect is infected, if there are sufficient grounds for suspecting that the person concerned has committed a sexual offence and the examination does not constitute a disproportionate intervention. The purpose is to ascertain whether the aggrieved person has been exposed to a risk of infection with a sexually transmitted disease, and the provision will help to strengthen the aggrieved person’s position in cases relating to sexual offences.

In chapter 11, the Commission also points out that the provisions of the Biotechnology Act on medically assisted reproduction are interpreted as meaning that the requirement of infertility does not apply to cases where the parties have been advised not to engage in unprotected sexual activity due to the risk of infection, typically where one of the parties is HIV positive. The Commission finds that the Biotechnology Act should be amended to allow assisted reproduction in the case of persons who have serious, chronic diseases that are transmitted through sexual activity, so that their partner can avoid the risk of infection and, in relevant cases, the child through the woman. In the Commission’s view, there can be no reason to maintain a prohibition against assisted reproduction when it is the man who is HIV positive. Sperm washing and insemination will eliminate the risk of infection for the woman, and there will be no risk of infection for the child. Nor will the child suffer any side-effects as a result of the treatment. If it is the woman who is HIV positive, the child will still be exposed to a certain risk of infection even when optimal treatment is provided. The Commission recognises the dilemma posed by the possibility of public authorities assisting in a process which places the child that is conceived at risk of both infection and possible side effects of medication. This must also be seen in conjunction with the criminal regulation of the transmission of infection or the exposure of another person to the risk of infection. Nevertheless, the Commission proposes a legal provision that is gender-neutral, i.e. that allows medically assisted reproduction irrespective of whether it is the man or the women who is the carrier of infection. However, the Commission emphasises that the question of whether assisted reproduction is medically justifiable must be assessed in each individual case, also with a view to the consequences for the child. Moreover, a medical and psychosocial assessment of the couple must be undertaken in the usual way under section 2-6 of the Biotechnology Act, and a decision must be made in which importance is attached to the ability of the couple to provide care, and to the child’s best interests.

Financial and administrative consequences are discussed in chapter 12. The Commission assumes that the amendments it proposes to the 2005 Penal Code will have no appreciable financial or administrative implications. The Commission also assumes that the consequences of its other proposals will be limited, and it will therefore, on the whole, be possible to implement the proposals within the ordinary budget limits. It may be necessary to allocate some additional funding for the implementation of the Commission’s proposals relating to infection control efforts targeting immigrants.

Chapter 13 contains special comments on the Commission’s draft statute.

The actual draft statute is included in chapter 14 and contains proposed amendments to sections 237 and 238 of the 2005 Penal Code and minor amendments to certain other provisions in the 2005 Penal Code, the addition of a new section 157a to the Criminal Procedure Act and the addition of a new paragraph to section 2-3 of the Biotechnology Act.