Criminal liability for passing on HIV
Anyone who is in effective treatment, who has protected sex, or who tells their sexual partners that they have HIV is now no longer liable to criminal prosecution.
Nowadays, convictions can only be passed in very few cases,as the following chart shows:
I've heard that being HIV-positive is no longer criminalised. Is that true?
Anyone who is in effective treatment, has protected sex, or who tells their sexual partners in advance that they have HIV is now no longer liable to criminal prosecution.
Individuals who no longer have a detectable viral load when they have unprotected sex now generally do not risk criminal prosecution. This is also true if they do not tell their sexual partner of their HIV status before having sex.
Are people with HIV and a detectable viral load still liable to criminal prosecution if they have unprotected sex?
HIV-positive individuals who have a detectable viral load and who do not notify their sexual partners of their HIV status before they have unprotected sex can face criminal prosecution on the grounds of serious assault (Art. 122 Swiss Criminal Code). The same is true even if the person concerned has not actually been infected. In such cases the offence is deemed to be attempted serious assault.
If an HIV-positive individual tells their sexual partner about their HIV status, and the partner agrees to have unprotected sex, the HIV-positive person is not liable to criminal prosecution. It can be difficult to prove this consent, however.
I've only found out just recently that I’m HIV-positive. I had unprotected sex before being diagnosed, and I may have infected someone else. Could I be prosecuted by a former sexual partner?
Anyone who isn't aware that they are HIV-positive, but might know that it is a possibility, can be prosecuted for negligent serious assault under Swiss law. That was the ruling of the Federal Supreme Court in 2006.
In theory, therefore, a former sexual partner could make a criminal complaint against you. However, to win a court case, the complainant would have to have contracted HIV, and would have to prove not only that the infection came from you, but also that you were aware – or must have been aware – that you were HIV-positive.
Comprehensive information and model letters can be found in the "Criminal liability for passing on HIV" section of our legal guide (PDF).
Rechtsratgeber (PDF)
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