Netherlands

The Netherlands became one of the first countries in the world to apply the science of HIV to the criminal law, essentially decriminalising everything except intentional HIV exposure or transmission.  Prior to this, between 1989 and 2005, there were at least 15 convictions for alleged HIV exposure or transmission using laws relating to assault, causing bodily harm and manslaughter.

In 2005, two rulings by the Supreme Court changed the Dutch approach to use of the Criminal Code. The first cases related to an HIV-positive man who had engaged in receptive oral and anal sex. The second case related to an HIV-positive man who had engaged in condomless oral and anal sex with two minors, aged 13 and 16, using force on one occasion. Lower level decisions had been based on a general understanding that the HIV in itself constitutes grievous bodily harm as it allowed no prospect of a full cure and lifelong medication with various side effects. The Supreme Court disagreed.

Under Dutch law, a charge of grievous bodily harm requires the establishment of ‘conditional intent’. Conditional intent includes three elements, one of which is that there must be a ‘considerable chance’ of HIV transmission. The court decided that the issue of ‘considerable chance’ required consideration of the facts, including scientific evidence on transmission risk. The court took into account the nature of sexual contact, the presence/absence of other sexually transmissible infections, the number of sexual acts, and the fact that antiretroviral therapy leads to a decline in viral load, making it less likely HIV can be transmitted. In the first case, the accused was found not guilty. In the second, the accused was acquitted of attempted manslaughter and attempted aggravated assault but convicted of rape.

The Supreme Court decision left it open for the Government to decide whether or not to enact an HIV-specific law. During this period, the Dutch Executive Committee on AIDS Policy and Criminal Law published a groundbreaking report, Detention or Prevention?, analysing the impact of the use of the criminal law on public health and the experience of living with HIV. That report played a significant role informing discourse of on HIV criminalisation issues at national level, with the Government persuaded that an HIV-specific criminal law was neither required nor useful.

Since 2005, the only known criminal (and subsequently civil) proceedings relates to a notorious case involving three men accused of drugging, raping and deliberately injecting HIV-positive blood into 12 men at private sex parties in Groningen. Notably, in 2008 the lower court ruled that there was no proof that the accused had transmitted HIV because it was impossible to prove that the men did not have HIV before attending the sex parties. Consequently, the accused were convicted of attempting to cause grievous bodily harm, rape and charges relating to injecting. The men were jailed for terms of nine years, five years, and three and a half years, respectively.

The case was appealed to the Leeuwarden Court of Appeal which, in 2010, reversed the lower court’s finding on causality, finding two of the men guilty of intentional grievous bodily harm, increasing the sentences to 12 and nine years respectively. That decision was appealed to the Supreme Court which, in March 2012, decided the case should be retried, because there was reasonable doubt that the men acquired HIV by being injected with HIV-infected blood and, as the lower court originally found, they may have acquired HIV through unprotected sex.