3 Engelsk sammendrag – English summary

3.1 Overview and conclusions

The report consists of three main sections.

The introductory section, chapters 1 to 3, contains a summary of the report, an account of the work of the Law Commission and a presentation of relevant considerations and arguments pertaining to the issue of whether or not the transmission – and possibly exposure to the risk of transmission – of serious communicable diseases should be a criminal offence.

The second section, chapters 4 to 10, contains background information on current Norwegian and foreign law and jurisprudence, international obligations and recommendations, medical and social science knowledge, and the experiences and views of stakeholders in this field.

The third section of the report consists of the Commission’s own assessments and proposals. The assessments may be found in chapter 11, and the draft statute in chapter 14. The comments on the draft statute are included in chapter 13, while financial and administrative consequences are described in chapter 12.

The report has three appendices. Appendix 1 is a memorandum entitled HIV/AIDS – Medisinske aspekter (HIV/AIDS – Medical aspects) prepared by Stig Frøland, M.D., Professor Emeritus. Dr. Frøland has also been a member of the Commission. Appendix 2 consists of the Regulations of 1 January 1995 No. 100 on communicable diseases that are hazardous to public health, which were laid down pursuant to the Act relating to the Control of Communicable Diseases (Communicable Disease Control Act). An English summary of the report has been included as Appendix 3.

Because there is international interest in the Commission’s assessments, and because only the summary will be translated into English, this summary has become so lengthy that the Commission’s conclusions are presented at the beginning of the document.

The Commission has chosen to distinguish between transmission of infection, i.e. situations where infection is transmitted directly, as by sexual activity, or indirectly from one person to another, for example via an object, and spread of infection, i.e. situations where a disease is caused by the spread of infection by air, water, food, etc., such as in connection with the food industry or in the case of Legionnaire’s Disease which is spread from cooling towers or other technical installations. However, the terms are sometimes also used as collective terms for all modes of transmission.

The draft statute of the Commission is based on the Norwegian Penal Code of 20051 (the 2005 Penal Code). The Commission unanimously proposes to include a provision in section 238 of the 2005 Penal Code on the spread of infection causing general danger to life or health, that will apply to any person «who spreads infectious agents or the products of infectious agents, by air, water, foods or other objects intended for general use or sale, thereby causing a general danger to life or health». Both intentional and negligent acts that have such consequences will be covered by the provision, but will carry different maximum penalties.

If such spread of infection is committed with terrorist intent, the Commission proposes that the act should be covered by section 131 (the anti-terrorism section) of the 2005 Penal Code.

The Commission correspondingly proposes to make it a criminal offence to fail to seek to prevent, by reporting the act to the police or in another way, the criminal spread of infection or its consequences, «at a time when this is still possible and it appears certain or most likely that the act has been or will be committed»; see the proposed addition to section 196 of the 2005 Penal Code.

It also proposes to include in section 241 of the 2005 Penal Code a prohibition against conspiracy to spread infection that is hazardous to public health, in addition to the prohibition against conspiracy to commit an act of poisoning causing general danger to life and health and/or conspiracy to commit a serious environmental crime.

The members of the Commission have divided opinions on whether the person-to-person transmission of infection should be covered by a special penal provision as is the case at present (section 155 of the 1902 Penal Code). One member proposes that this penal provision be repealed and that no new provision be added to the 2005 Penal Code, and that the provision already adopted in the 2005 Penal Code not enter into force.

The 11 other members find it clearly most appropriate to have a separate penal provision on direct and indirect person-to-person transmission of serious communicable diseases, including through sexual intercourse. This is proposed in the draft of section 237 on transmission of infection in the 2005 Penal Code. A separate provision of this nature makes it possible to introduce, in the text of the statute, impunity in cases where responsible behaviour has been displayed in terms of communicable disease control, and to establish rules for when consent will exempt a person from criminal liability. It is proposed that the threat of criminal prosecution should target the act of transmitting a communicable disease that causes significant harm to body or health, as well as blameworthy conduct that results in exposure of another person to the risk of being infected with such a disease.

Of these 11 members, a minority of two is in favour of a penalty only being applicable when infection is transmitted. The other nine members are of the opinion that the act of exposing another person to the risk of infection should also be punishable when the behaviour in question is blameworthy («on repeated occasions or through reckless behaviour») from the perspective of communicable disease control. This is also warranted for evidentiary reasons.

It is proposed that the threat of criminal sanctions for direct and indirect person-to-person transmission of infection should only apply to intentional and grossly negligent acts, contrary to section 155 of the 1902 Penal Code and section 237 of the 2005 Penal Code, which also cover simple negligence. The draft statute states that no penalty is applicable when proper infection control measures (such as use of a condom in connection with sexual intercourse) have been observed. Nor is a penalty applicable in the case of transmission of infection in connection with sexual activity when the person who has been infected or exposed to the risk of infection has given prior consent in the presence of health care personnel in connection with infection control counselling.

The special comments to the draft statute point out that the prosecuting authority should show restraint in cases of infection transmitted from mother to child, in connection with the use of shared injection equipment among drug users, in connection with sex work and between two infected persons, particularly when both of them are aware of their own and their partner’s infection status.

The proposal entails a certain decriminalisation and reduced criminalisation in relation to the current section 155, and a clarification of when penalties are not applicable. It is proposed that the penalty level be reduced somewhat. The current maximum penalty (six years’ imprisonment) is only to be maintained for aggravated transmission of infection, which will primarily apply in cases where the transmission of infection has caused loss of life, the infection was transmitted to two or more persons, or transmitted as a result of «particularly reckless behaviour».

Reference is made to point 9 of this summary for somewhat more detailed assessments and delimitations.

The Commission emphasises that – regardless of whether the transmission of infection is governed by a special provision or whether criminal proceedings are instituted under other penal provisions – it is a condition that the criminal proceedings satisfy the requirements that follow from human rights instruments and other rule-of-law principles.

The Commission does not propose any amendments to the Communicable Disease Control Act, but points to areas where greater efforts may contribute to ensuring that at-risk groups have better access to protection against infection. This includes the right to infection control assistance, intensified infection control counselling when the guidance received is not complied with, access to clean injection equipment for prison inmates and improved infection control assistance for asylum seekers, refugees and other immigrants. Various issues related to health care personnel’s duty of confidentiality and the right and duty to disclose information are also discussed. The Commission proposes that the health authorities prepare a guide or similar material on the above-mentioned topics with a view to promoting the effective, uniform implementation of the Communicable Disease Control Act.

The Commission’s mandate also includes assessing legislation in associated fields, and the Commission has concentrated on two proposals, respectively relating to the Criminal Procedure Act (Act of 22 May 1981 No. 25) and the Biotechnology Act (Act of 5 December 2003 No. 100).

The Commission proposes to introduce a new provision in the Criminal Procedure Act, a new section, 157a, which would make it possible, in the case of a sexual offence, to take a blood test from a person «whom there are reasonable grounds for suspecting» of such an act when this does not constitute a disproportionate intervention. The prosecuting authority may decide that such a blood test is to be taken, regardless of the consent of the accused. The aggrieved person shall be notified of the results of the samples tested. This will strengthen the position of the victim in cases of abuse or assault as the aggrieved person will more quickly be able to ascertain whether there is a real danger of infection being transmitted as a result of the abuse or assault.

In the Biotechnology Act, the Commission proposes to introduce a new provision in section 2-3, new second paragraph, which allows medically assisted reproduction also when «the man or the woman is infected with a serious and chronic sexually transmitted infection». This provision may make it possible for conception to take place in a way that eliminates or reduces the risk of infection for the partner. The other conditions in the Biotechnology Act that specify when medically assisted reproduction may take place also apply in such situations.

3.2 The introductory chapters of the report

Chapter 1 contains a summary of the report.

Chapter 2 presents the composition of the Commission, its mandate and its working methods, and the background for the appointment of the Commission.

In connection with work on legislation, among other things, criticism has been expressed as regards section 155 of the 1902 Penal Code, which covers the transmission of communicable diseases that are a hazard to public health and exposure of another person to the risk of such transmission, and the corresponding penal provision in sections 237 and 238 of the 2005 Penal Code, which have not yet entered into force. In connection with the adoption of the new penal provisions, the majority of the Storting’s (Norwegian Parliament) Standing Commission on Justice expressed a need for more knowledge in this field and a review of Norwegian legislation, among other things in light of the international work being done in the field.

The description of the Commission’s working methods also specifies the persons who have held lectures for the Commission, and details the Commission’s study visits to other countries.

The work of the Commission has largely focused on the transmission of infection and exposure to the risk of infection in connection with sexual activity. This is partly due to the fact that jurisprudence in this field generally concerns this mode of transmission. Particular reference is made in the Commission’s mandate to issues relating to HIV, which in Norway today is largely transmitted sexually. Relevant international efforts are also related to HIV. However, the Commission has taken into consideration the fact that both HIV and other diseases can be transmitted in other ways, such as through the sharing of injection equipment, and that the issue of criminal regulation is also relevant in relation to other serious communicable diseases. The Commission has also assessed criminal law issues related to the spread of infection by air, water, food, etc., in addition to the person-to-person transmission of infection. The provisions of sections 237 and 238 of the 2005 Penal Code cover all modes of transmission of infection.

In chapter 3, the Commission sets out considerations and arguments in favour of and against the application of criminal law to the transmission of infection and the exposure of another person to the risk of infection, but does not discuss the weight of the various considerations and arguments in this chapter.

Reference is initially made to the important basic principle that individuals have a general freedom of action into which interventions can only be made on special grounds. In every society, however, a number of limitations will necessarily be imposed on this freedom of action in order to safeguard various concerns and interests.

In addition to the informal social control that individuals exercise among themselves, the public authorities take steps to control the population’s behaviour by means of various instruments. These interventions may be justified by the individual’s own interests or the interests of society at large, such as the safety of other citizens. Under principles of Norwegian law concerning administrative legality and no punishment without law and the human rights conventions with which Norway is bound to comply, no intervention can be made in the private spheres of a citizen’s life, or in citizens’ fundamental freedoms, unless there is legal authority to do so. Criminal sanctions are the strongest instrument used by the government to control the behaviour of its citizens.

The type of interventions that are suitable for inducing citizens to respect the norms, and the sanctions that may be imposed in the event of a breach of those norms, will vary from one field to another. It is not certain that every type of act that requires some legal regulation has to be – or ought to be – punishable. In considering what should be subject to a criminal sanction, it is natural to take into account the other instruments that may be available for dealing with the types of action concerned.

Emphasis is also placed on the views regarding which principles should serve as the basis for criminalisation; these principles were clearly outlined in the preparatory works to the new Penal Code that was adopted by the Storting (Norwegian parliament) in 2005. In these works, the harm principle was adopted as a starting point and as a basic condition for criminalisation, i.e. behaviour should only be punishable if it causes harm or presents a risk of harm to interests that should be protected by society. Sections of the preparatory works in which this starting point is elaborated on are quoted.

Different considerations can argue for or against the application of criminal law to the transmission and the risk of transmission of a serious communicable disease, and may have a bearing on the way (possible) penal provisions should be formulated with regard to the objective and subjective conditions for imposing a penalty. Some general considerations are cited in the current debate as arguments both for and against the application of criminal law, but in such cases they are put forward by different groups and are based on different premises.

The Commission has found little scientific evidence of the effects of criminal regulation of infection transmission and exposure, and thus of the validity of some of the considerations and arguments that are mentioned. It is hard to find good research methods for answering such questions. This applies not only to the legal area in question, but also to the general intended and unintended effects of laws. Few or no studies have convincingly documented direct links between criminal regulation and infected persons’ behaviour and perception of discrimination or stigmatisation, or links between criminal regulation and non-infected persons’ (possibly undiagnosed persons’) choice of protective strategies and willingness to undergo testing. This means that it is difficult to carry out a thorough assessment of the validity of the arguments, including the question of whether penal provisions of this nature have the intended general deterrent effect and/or a deterrent effect on individuals.

An important reason for the current penal provisions governing infection transmission and exposure of another person to the risk of infection is the desire to protect public health. Communicable diseases are not only a danger, source of harm or nuisance to the individual who is infected, but can also pose a threat to public health. Several societal interests make it important to avoid the spread of communicable diseases, in particular diseases that may be life-threatening, incurable and troublesome, or long-term and serious. However, it is also claimed by some that application of criminal law to infection transmission and exposure does not protect public health, but has the opposite effect since persons who may be infected refrain from undergoing testing in order to avoid prosecution.

The Commission also presents considerations and arguments related to the freedom and responsibility of infected persons. It is uncertain how a threat of criminal sanctions will affect infected persons, both with regard to behaviour involving a risk of communicable disease transmission and with regard to other aspects of life. In any event, most infected persons probably want to avoid infecting others, but the ideal of avoiding behaviour that might entail a risk of infecting another person is not always lived up to, for example due to a personal crisis or substance use problems, which can best be mitigated by psychosocial support or treatment.

Sexual activity, including unprotected sexual activity, between consenting adults, is commonplace and is usually engaged in to satisfy basic needs. In addressing the issue of the (possible) application of criminal law, consideration should therefore be given to whether all responsibility should be placed on the infected party or to what extent both parties can be said to have a shared responsibility for avoiding the transmission of infection.

Many may find it difficult to be open about their infection status or to raise the question of using a condom, a reluctance that may be reinforced by the threat of criminal sanctions. In close relationships, particularly when feelings and the desire to establish a couple relationship are involved, people do not always make rational, well-considered decisions, seen from a health perspective. However, the salient question is whether this absolves them of responsibility for their acts.

The Commission also points to the freedom and responsibility of non-infected persons. Most of them will, in their own best interests, seek to avoid being infected, but many persons also behave in such a way as to give rise, in certain situations, to varying degrees of risk of infection transmission, such as in connection with sexual contact. The question of the consequences that the behaviour of the person who becomes infected or is exposed to a risk of infection should have in a criminal law context is debatable. Where diseases that are transmitted through sexual activity are concerned, it can be asserted that it is up to the individual concerned to protect himself or herself.

A possible consequence of imposing criminal liability on the infected person is that non-infected persons – and those who believe that they are not infected – feel less responsibility for taking their own protective measures, and may take it for granted that infected persons will inform them of the risk of infection before engaging in sexual activity that could place them at risk of infection or, possibly, ensure that they are protected against infection. This could counteract one of the objectives of criminal regulation, i.e. preventing the transmission of infection. But this will only be the case if the infected party does not ensure protection in the light of his or her knowledge of the existence of a specific risk of infection. At the same time, not all infected persons are aware of their infection status, so it is important that all parties take precautions. The Commission has not found any evidence to show that the behaviour of non-infected persons is affected by such assumptions.

Individuals have little possibility of protecting themselves against the spread of infection by air, water or food, unless the infectious agents are detectable due, for instance, to the odour or appearance of the food. In many cases, manufacturers and suppliers will necessarily be considered responsible for the spread of infection.

Another consideration that is cited is the general sense of justice, i.e. what ordinary people consider to be right or reasonable in terms of what constitutes a criminal act, under what circumstances a penalty should be applicable, and what the possible penalty level should be. To a large extent, the general sense of justice springs from shared social norms.

The Commission also points to certain other relevant considerations or arguments, including the function of a penalty as a means of retribution or redress, the issue of compensation in the form of financial damages, evidential considerations, the proportionality of the sentence imposed, various factors that can give rise to an act being reported to the police and the question of the transfer of legal provisions to other countries.

Attention is also drawn to considerations and arguments related specifically to the issues of whether criminal law should only be applied to the transmission of infection or also to the exposure of another person to the risk of infection, and whether there should be special penal provisions in this area or whether general penal provisions regarding the infliction of bodily harm should be applied.

3.3 Norwegian communicable disease control legislation

Chapter 4 reviews Norwegian communicable disease control legislation. The Communicable Disease Control Act, which came into force in 1995, replaced a number of older statutes.

The introductory provisions of the Act deal with the purpose of the Act, its scope and definitions. Among other things, the Act defines the term «communicable disease that is hazardous to public health», which is given special status in a number of the Act’s provisions. The Regulations issued pursuant to the Act include a list of the diseases considered to be communicable diseases that are hazardous to public health. The Communicable Disease Control Act applies to every person staying in Norway.

The Act contains provisions specifying which public agencies have responsibility for and authority with regard to communicable disease control. The municipal authorities and chief municipal medical officers have important functions. Moreover, a number of state bodies are involved, including the regional health authorities, county governors, the Norwegian Board of Health Supervision, the Norwegian Directorate of Health and the Norwegian Institute of Public Health.

Preventive measures, including the provision of information and services to the population, play an important role in efforts to control communicable diseases. The Norwegian Institute of Public Health is the state institute for communicable disease control, and is tasked with providing advice, guidance and information to municipal, county and state institutions, health care personnel and the population at large on communicable diseases, infection control and the choice of infection control measures. The Norwegian Institute of Public Health is responsible for monitoring the epidemiological situation, conducting research in the field of communicable disease control and ensuring supplies of necessary vaccines and vaccine preparedness.

The Act provides legal authority for a range of infection control measures, such as prior examination of job applicants or patients, a prohibition against the performance of work, vaccination orders, a prohibition against assembly, the closure of various types of businesses, removal of sources of infection, quarantine measures, etc. It lays down detailed conditions for the various interventions, some of which are reserved for communicable diseases that are hazardous to public health or, in some cases, for serious outbreaks of such diseases. Such measures are only utilised to a limited extent, due to the favourable public health situation as regards communicable diseases. A large number of the intervention provisions in a general communicable disease control statute will be of a contingent nature until such time as a serious epidemic makes it necessary to apply them. Any person who has reason to believe that he or she has been infected with a communicable disease that is hazardous to public health has an obligation to consult a physician, undergo an examination, accept infection control counselling, and assist in tracing the source of infection.

Physicians must be particularly aware of the possibility of a patient having a communicable disease that is hazardous to public health, and if they suspect such a disease, must with the patient’s consent initiate such examinations as are necessary to ascertain whether the patient has such a disease. If so, the physician shall immediately and in consultation with the infected person make every effort to prevent the disease from being transmitted to other persons. On certain conditions, the physician has a duty to take steps to trace the source of infection if this is feasible and necessary in the interests of communicable disease control.

Health care personnel’s duty of confidentiality is an important basic principle for contact between patients and health services. For the purpose of disease control, the Communicable Disease Control Act contains provisions that permit certain special exceptions from the duty of confidentiality, including the right and the duty of disclosure, notifications and warnings. Among other things, the law authorises physicians, on certain conditions, to disclose information to persons who are at risk of being infected with a communicable disease that is hazardous to public health. If the risk of transmission is imminent and obvious, the physician has a duty to disclose information. Infected persons do not themselves have any statutory duty to disclose information regarding the risk of infection to sexual partners or to any other persons who are placed at risk of infection.

Every person is entitled to necessary assistance with communicable disease control. Everyone who is infected or at risk of infection with a communicable disease that is hazardous to public health has a right to specified infection control assistance. A number of health services that are considered to be infection control assistance are provided at no charge to the patient. The term «infection control assistance» must be interpreted broadly, and can also encompass psychosocial support and various services that address underlying problems which cause the infected person to behave in a way that places other persons at risk of infection; such services include assistance in dealing with substance use and social problems. The same applies to persons who require assistance in order to avoid being infected.

In very exceptional cases, infected persons, or persons assumed to be infected, with a communicable disease that is hazardous to public health, may on specific conditions be required to submit to an examination or be placed in isolation against their will. It is emphasised in the preparatory works to the statute that coercion shall only be used as a last resort when voluntary measures have proved ineffective and it is necessary to prevent the transmission of such a disease to other persons. Alternative measures must have been tried unless the disease is so contagious or dangerous that one cannot take the risk of the alternative measures failing. The use of coercion will primarily be relevant in the case of diseases against which individual citizens cannot protect themselves. The Act sets a time limit for isolation and contains provisions on administrative procedures, etc. to ensure due process of law for the patient and that the intervention is no more onerous than necessary. The coercive provisions are used very rarely. There have only been a dozen or so cases since the Communicable Disease Control Act came into force in 1995, and almost all of them concerned tuberculosis.

The Communicable Disease Control Act does not itself contain any penal provisions, but refers to the fact that violation of the Act or regulations laid down pursuant to the Act is punishable under the provisions of section 156 or section 357 of the 1902 Penal Code. A decision to amend this situation has been adopted, and when the 2005 Penal Code comes into force, the Communicable Disease Control Act will have a special penal provision that covers breaches of the Act and breaches of regulations laid down or individual decisions made pursuant to the Act. Both the current and the new provision explicitly exempt breaches of the duties for infected persons laid down in the Communicable Disease Control Act. Moreover, the Act contains no penal provisions governing the transmission of infection or the exposure of another person to the risk of infection. In Norwegian law, this has been regulated by special provisions in the Penal Code.

3.4 Norwegian criminal regulation – current law and adopted new provisions

Chapter 5 gives an account of current Norwegian criminal regulation and jurisprudence.

Section 155 of the 1902 Penal Code prescribes the penalty for any person who, having reasonable cause to believe that he is a carrier of a communicable disease that is hazardous to public health, intentionally or negligently infects another person or exposes another person to the risk of infection.

Following the unanimous decision by the Storting in 2003 to increase the penalty – based on opinions in a Supreme Court judgment – the maximum penalty is imprisonment for a term of up to six years if the offence is committed intentionally and up to three years if the offence is committed negligently.

The original section 155 applied to sexually transmitted diseases. When the Communicable Disease Control Act was adopted, the provision was amended to apply to communicable diseases that are hazardous to public health. The Act’s definition and the Regulations regarding what is to be regarded as such a disease will also serve as a guideline in cases pursuant to the Penal Code, but will not be decisive. While the penal provision is no longer limited to special modes of transmission (sexual activity), there must, in order for section 155 to be applicable, be an infectious person who carries out the act that causes the transmission of infection or exposes another person to the risk of infection.

In the past couple of decades, the penal provision in section 155 has mainly been applied in connection with the transmission of HIV infection or exposure to such transmission. In certain cases, it has also been applied in connection with hepatitis B and hepatitis C. Jurisprudence relating to section 155 generally concerns infection or exposure to infection in connection with sexual activity. The Commission does not know of any criminal cases in Norway that concern the sharing of injection equipment or mother-child transmission of infection in connection with pregnancy, childbirth or breastfeeding.

Conviction under section 155 is not conditional on infection actually being transmitted, and it is not of decisive importance when considering the question of guilt to determine whether infection was in fact transmitted from the accused to the aggrieved person. The transmission of infection and exposure of another person to the risk of infection are equal alternatives in the penal provision. However, a more severe penalty is generally imposed when the aggrieved person has been infected, provided that the court has found that the accused has infected the aggrieved person.

The provision in section 155 does not specify how great the risk of infection must be in order for the penal provision to be applicable. Legal literature states that no demonstration of a probability that another person will be infected can be required, and that «an obvious possibility must be sufficient». The Supreme Court commented in one case that there would have been a violation «even if there is relatively little probability of infection». A question can be raised as to whether the degree of the risk of infection that is required for a breach of law to have occurred depends on the seriousness of the disease.

In the preparatory works related to section 237 of the 2005 Penal Code, it is stated that when a person infected with HIV is receiving treatment that reduces the risk of infection, a case-by-case assessment must be undertaken of whether the risk of infection in connection with unprotected sexual activity is sufficient to satisfy the statutory conditions. The same must apply under section 155 of the 1902 Penal Code.

The degree of risk of infection transmission will to some extent also have a bearing on the penalty imposed, as can be seen from relevant jurisprudence.

The standard of guilt in section 155 is intent or negligence, which have now been regulated in two different penalty alternatives with different maximum penalties. Simple negligence is sufficient, but the degree of negligence will be significant for the penalty imposed.

Jurisprudence shows that convictions have generally been handed down for intentional2 violations. It must be assumed that there is seldom purposeful intent on the part of the perpetrator, in the sense that he or she acts with the purpose of infecting someone or with the purpose of exposing someone to the risk of infection. However, a perpetrator who knows that he or she is infectious can typically act with indirect intent, since it is sufficient that he or she acts in the awareness that the action certainly or more probably than not will expose another person to the risk of infection. Conditional intent (dolus eventualis) may be particularly relevant in the case of a perpetrator who does not know, but who has just cause to believe that he or she is infectious. It is sufficient to ascertain guilt in the form of conditional intent that the perpetrator knew that there was a possibility (not probability) that the act would expose another person to the risk of infection, and nevertheless decided to act even if the risk should materialise (approval of the criminal result).

The standard of guilt is specially regulated in section 155 in the wording «having sufficient cause to believe that he is a carrier of infection». The basic premise in legal literature is that the perpetrator does not necessarily have to consider it probable that he is suffering from a disease covered by the Act; it is sufficient that he «is aware of the possibility and considers it to be relatively likely». Few or none of the convictions of which the Commission is aware concern accused persons who were not aware of their infection status. In the vast majority of the cases, the accused was indisputably aware of his or her infection status, while the aggrieved person was not informed.

The standard of guilt is deemed not to have been satisfied if the perpetrator takes effective precautions to prevent the transmission of infection. In both the preparatory works to the new Penal Code and jurisprudence, the basic premise is that it is not a criminal offence under current law for an HIV-positive person to engage in sexual activity with the proper use of a condom. This must apply correspondingly to other sexually transmitted diseases.

Providing information on infection status or having the consent of the person who has been infected or exposed to the risk of infection does not exempt the perpetrator from liability to a penalty under section 155. The 1902 Penal Code contains no general provisions that define when consent has the effect of exemption from penalties, but in jurisprudence a principle has evolved to the effect that consent does not constitute a basis for exemption from a penalty pursuant to a penal provision that is intended to protect public interests, such as public health. However, weight may be given to consent in connection with sentencing. In practice there have been few cases in which consent has been an issue. In most cases, the perpetrator has concealed or denied the fact that he or she was a carrier of infection.

Irrespective of whether prior consent has been given, the special prosecution rule in section 155 may, on certain conditions, prevent an indictment from being issued against the wishes of the aggrieved person. If the aggrieved person is the perpetrator’s next of kin, public prosecution proceedings may only be instituted upon petition by the aggrieved person, unless prosecution is required in the public interest. This applies, for instance, to spouses. When two persons live together permanently in marriage-like circumstances, the relationship is equated with marriage. The provision also applies to same-sex couples, since the Marriage Act is now gender-neutral.

The penal provision in section 155 may be applied concurrently with other penal provisions, i.e. applied simultaneously for the same offence because the provisions were laid down to protect different interests (exact concurrence). There are examples of cases where indictments have been issued under section 155 of the Penal Code for exposure of another person to the risk of infection concurrently with penal provisions relating to sexual offences, including rape and sexual activity with minors. In cases where infection has in fact been transmitted, an indictment may be issued under provisions that impose a higher maximum penalty. For example, several of the penal provisions relating to sexual offences impose a higher penalty if the aggrieved person dies or suffers considerable harm to body or health as a result of the act.

After attempting to track down as many judgments as possible, the Commission has found around two dozen cases in which judgment was handed down (in one or more instances), on the basis of an indictment issued under section 155 of the Penal Code alone or in combination with other offences. In a couple of cases, the accused was acquitted of some of the counts in the indictment, among other things due to the lack of subjective guilt.

Among the cases identified by the Commission, one dates from 1992, while the rest of the criminal cases were decided after the turn of the millennium (including some arising from acts committed in the 1990s). One case from 1930 is of lesser interest in this context.

Many of the judgments cover repeated breaches (continuous crime), as the carrier of infection has engaged in unprotected sexual activity with the aggrieved person more than once and often several times, and in a number of cases regularly over a period of several years.

In a number of cases, moreover, several persons were exposed to infection or the risk of infection by the accused. There have been up to 16 aggrieved persons in a single case.

Slightly less than half of the cases that solely or chiefly relate to violation of section 155 concern instances in which the aggrieved person or persons was/were exposed to the risk of infection without infection actually being transmitted. In some of the cases, there was uncertainty as to who infected the aggrieved person, or it was found that the aggrieved person had already been infected in some other way. In some such cases, a conviction was handed down for attempted violation of section 155.

The penalty level in the last few decades in cases that only concern conviction under section 155 of the 1902 Penal Code, or where the other offences have been of little significance for the penalty imposed, ranges from a suspended sentence of 90 days’ imprisonment3 to a sentence of unconditional imprisonment for a term of five years. In the cases in which the penalty has approached the maximum penalty of six years’ imprisonment, the accused was convicted of several offences, and at least one instance of actual transmission of infection.

Pivotal issues with regard to sentencing appear to be whether infection has in fact been transmitted or whether there has merely been a risk of such transmission, and the number of persons who have been infected or exposed to the risk of infection. In assessing the potential risk, importance has been attached to the period/number of times the aggrieved person(s) was/were placed at risk of infection and, to some extent, to the degree of risk involved in the respective acts. The fact that the accused is being treated for HIV which may have reduced the risk of infection to some extent has been mentioned in several judgments, both when assessing the question of guilt and in connection with sentencing. While such circumstances have not resulted in acquittal, they have generally been ascribed a certain importance in connection with sentencing. Weight has also been given to the extent of the breach of trust, which can range from a person’s failing to disclose his or her infection status to providing blatantly untrue information. In some cases, the accused person has deliberately misinformed the aggrieved person throughout a long-term steady relationship. In certain other cases, on the other hand, some importance has been attached to the circumstances of the aggrieved person, with reference to the fact that the aggrieved person has placed himself/herself at risk of infection by engaging in unprotected sexual activity with a stranger. To some extent, the courts have given weight to whether the perpetrator subsequently gave the aggrieved person relevant information, thereby enabling the latter to follow up on his/her own infection status. In one case, importance was attached to the fact that the aggrieved person had passed the infection on to another person because the former was unaware of his/her status as a carrier of infection. In another case, emphasis was given to the fact that the perpetrator showed little willingness to change (third conviction for breach of section 155).

As a rule, an unconditional sentence of imprisonment is imposed, but there are certain examples in case law where the entire4 or part of the sentence was suspended. The Commission does not know of any cases in which a community sentence or a fine was imposed.

A claim for compensation for non-pecuniary damage and other compensation related to the offence is not a penalty, but such civil claims may be adjudicated in the criminal case. This has been done in a number of cases relating to violations of section 155 of the 1902 Penal Code.

Chapter 5 also contains brief summaries of the criminal cases relating to section 155 of the 1902 Penal Code of which the Commission is aware.

A brief description is also given of sections 152a, 154, 154a, 156 and 357 of the 1902 Penal Code, which also relate to communicable diseases and are particularly relevant for the transmission of infections by modes other than from person to person. Little use appears to have been made of these provisions.

The penal provision in section 155 (and to some extent section 154) of the 1902 Penal Code has been maintained in section 237 on transmission of infection and section 238 on aggravated transmission of infection of the 2005 Penal Code, in chapter 23 on protection of public health and the external environment.

Sections 156 and 357 of the 1902 Penal Code are to be transferred to section 8-1 of the Communicable Disease Control Act. Section 152a of the 1902 Penal Code is to be maintained in section 142 of the 2005 Penal Code. The penal provision in section 154a will not be maintained.

The preparatory works to the new statutory provisions in sections 237 and 238 of the 2005 Penal Code are discussed, including the comments made by the Standing Commission on Justice regarding the need for more knowledge and a review of the state of the law in Norway in this field. The provisions were unanimously adopted in accordance with the draft statute. They have not yet entered into force. The 2005 Penal Code will not come into force until 2014 at the earliest, with the exception of chapter 16 on genocide, etc. that is already in force.

In the discussion of sections 237 and 238 of the 2005 Penal Code, particular importance is attached to the ways in which they differ from section 155 of the 1902 Penal Code.

The provisions are divided up differently, with the penal provision in section 237 covering the basic crime and section 238 laying down higher maximum penalties for aggravated violations.

The main rule in the 2005 Penal Code is that the criminal legislation only covers intentional offences unless otherwise provided. The standard of guilt in section 237 is intent or negligence, in the same way as under section 155 of the 1902 Penal Code. One amendment consists of the deletion of the divergent standard of guilt inherent in the phrase «having sufficient cause to believe that he is a carrier of infection». The reason for this is a desire to ensure that the penal provision also covers cases in which the infection is not transmitted from person to person. Consequently, under section 237, there is no requirement that the perpetrator himself is a carrier of infection. The provision will also cover infection that is spread by air, water, food, etc.

The provision in section 237, second paragraph, to the effect that the consent of a closely related aggrieved person provides exemption from penalties on certain conditions constitutes a change in the substance of the statute. No penalty will be applied when the person who has been infected with a sexually transmitted disease or exposed to a risk of such infection is a spouse or cohabitant, regardless of gender, of the person who has transmitted the infection or exposed the person concerned to a risk of infection, and the person concerned has given his or her prior consent to being exposed to such risk. The provision concerning consent contains no formal requirements. It is stated in the preparatory works that consent must be informed consent, i.e. the person giving the consent must understand what such consent entails and be able to assess the consequences of exposing himself/herself to the risk of infection. This can, for instance, be achieved by contacting health care personnel to obtain information that will be helpful in considering whether to give consent. The consent must not be invalid. The consent may be withdrawn at any time, but withdrawal will only apply to future acts.

Among the cases under section 155 of the 1902 Penal Code of which the Commission is aware from jurisprudence, the Commission cannot see that there are any cases which would not also be covered by section 237 as adopted in the 2005 Penal Code.

The provision in section 238 lays down higher maximum penalties for aggravated violations of the basic offence in section 237, and specifies factors that can cause the violation to be deemed to be aggravated. The ordinary maximum penalties (section 237) are imprisonment for a term not exceeding three years for intentional violations and for a term not exceeding one year for negligent violations. In cases of aggravated transmission of infection (section 238), the maximum penalty is imprisonment for a term not exceeding six years for intentional violations and a term not exceeding three years for negligent violations, i.e. the same maximum penalties as in section 155 of the 1902 Penal Code, which does not prescribe separate maximum penalties for aggravated violation. It is evident from the preparatory works that it was not the intention to change the current penalty level.

The core area of application for section 238 will be cases in which the transmission of infection has resulted in the general spread of the disease or the risk of such spreading, or has caused loss of life or considerable harm to body or health. However, the provision’s scope of application is not limited to such cases. Whether a violation of section 237 should be considered aggravated must depend on a discretionary overall assessment, and the list of factors in section 238 is not exhaustive.

The provisions of sections 237 and 238 of the 2005 Penal Code on transmission of infection contain a definition of the act that could conceivably apply to the same circumstances as other penal provisions in the 2005 Penal Code. This will probably apply particularly to section 239 on poisoning involving general danger to life and health and section 240 on serious environmental crime, in chapter 23 on public health protection and the external environment, and to the provisions regarding bodily harm, etc. in chapter 25 on violent offences. A decisive factor in determining whether sections 237 and 238 can be applied concurrently with other penal provisions will be whether the provisions target different aspects of the offence.

Chapter 6 contains a brief account of other legislation of relevance for the Commission’s work. The statutes that are discussed are the Criminal Procedure Act, the Act relating to Compensation for Damage or Injury, the Health Personnel Act, the Patients’ Rights Act, the National Insurance Act, the Health and Care Services Act, the Public Health Act, the Act on Patient Injury Compensation, the Act relating to food production and food safety, etc., the Biotechnology Act, the Anti-Discrimination and Accessibility Act, the Anti-Discrimination Ombud Act, the Human Rights Act, the Alternative Treatment Act, the Dispute Act, the Marriage Act, the Act on Health and Social Preparedness, the Immigration Act and the Adoption Act.

3.5 Foreign law

Chapter 7 gives an account of the legislation and jurisprudence of the countries to which the Commission has made study visits, i.e. Denmark, Sweden, the Netherlands, the UK and Switzerland. It also contains a brief description of the state of the law in the other Nordic countries and certain other European countries.

The Commission has familiarised itself to some degree with the state of the law in other countries and continents through available compilations of information to which reference is made in chapter 7, although this is not discussed in further detail. It is noted that the different states/provinces/territories in the USA, Canada and Australia have different laws and jurisprudence, but that the debate in this field appears to be very similar to the debate in European countries and international forums, except as regards aspects of the state of the law that are specific to individual countries and that have less relevance for the situation in Norway. With regard to countries in Africa or Asia, the legal traditions, legal systems and actual circumstances differ to some extent substantially from circumstances in Norway.

Most countries in Europe have penal provisions which can be applied to some extent to the transmission of communicable diseases and often also to the exposure of another person to the risk of infection. The description in chapter 7 shows certain variations in criminal regulation of and the state of the law as regards infection transmission and exposure in the countries in which the Commission has investigated legislation and jurisprudence. All of the countries mentioned apply their general penal code insofar as infection transmission and exposure are prosecuted. Some countries apply the general penal provisions on offences against the person/bodily harm or on endangerment of the life or health of another person, while in other countries, the penal code contains special provisions governing infection transmission and exposure.

Looking at other countries, examples can be found of other forms of regulation, such as special HIV laws that also impose penalties for infection transmission and exposure or special penal provisions in the general penal code which particularly cover the transmission of HIV infection and exposure to the risk of HIV infection. It does not appear to be common for penal provisions on infection transmission and exposure to be laid down in public health or communicable disease control legislation.

All of the countries that are discussed in more detail in chapter 7, except for Iceland, have experience of convictions in this field, and most of the countries have reported convictions for both infection transmission and exposure. The Commission does not have a complete list of convictions. The information that has been collected and made known primarily concerns HIV. The Commission knows of few convictions related to other communicable diseases.

In some countries, there has been a gradual change over time as to which penal provisions are applied, often as a result of Supreme Court decisions. In some countries, different penal provisions are applied depending on the degree of culpability and, in relevant cases, also on whether the case involves infection transmission or exposure. In several countries, particularly those which apply general penal provisions governing bodily harm, the transmission of infection is punishable as a completed violation, while exposing another person to the risk of infection is punishable as an attempted violation.

In certain countries, the situation at present is that there is no basis for instituting criminal proceedings, at least not in cases where infection transmission or exposure has taken place in connection with consensual sexual activity between peers. In november 2011, Denmark repealed the regulations laid down pursuant to section 252, paragraph 2, of the Danish Criminal Code, with the result that no diseases are currently covered by the penal provision on exposure to infection. In the Netherlands, as a result of two Supreme Court decisions, infection transmission and exposure are only prosecuted in very special cases.

In Switzerland, a legislative process is currently in progress in which amendments have been proposed to the relevant provision of the Criminal Code in connection with the introduction of a new law on epidemics.

In Sweden, criticism has been raised about the way in which the legal provisions are applied in practice, which results, for example, in unforeseeability as to how cases will be adjudicated in terms of the degree of culpability and thus which penal provision will be applied, a factor that is decisive for the maximum penalty and the sentence imposed.

The acts that have resulted in conviction in the countries studied by the Commission consist mainly of unprotected sexual activity. The state of the law as regards the use of condoms appears to be unclear in some countries, but the Commission does not know of any convictions in cases where a condom was used during the entire act of intercourse.

The legal significance attributed to information regarding infection status and to the consent of the person exposed to the risk of infection varies from country to country. In some countries, the consent of a sexual partner who was aware of the concrete risk of infection exempts the perpetrator from a penalty. In countries where consent does not have this effect, it may nonetheless appear that, in practice, cases in which information on infection status was provided are rarely prosecuted. And, when they are, importance is usually attached to this fact during sentencing.

Standards of guilt differ from one country to another, partly due to general differences in standards of guilt in the countries’ criminal law, and partly depending on the penal provisions deemed to be applicable to infection transmission and exposure.

The penalty level varies significantly in cases regarding infection transmission and exposure, even within the individual countries. This at least to some extent reflects the different circumstances of the cases, such as the number of aggrieved persons, whether infection was transmitted and, if so, to how many persons, the number of times the aggrieved person(s) was/were exposed to risk of infection, the degree of risk of infection in each individual case and whether the convicted person failed to inform or misinformed the aggrieved person about his/her infection status. The degree of culpability that is shown will also be of significance for the sentence imposed, and is decisive in some countries regarding which penal provision is applied.

Based on the information available, the total number of criminal prosecutions for HIV transmission in all the countries appears to be extremely limited in relation to the number of persons who are diagnosed with HIV each year. This may in part be related to the fact that a certain percentage of persons are infected abroad, as is also the case for Norway. Nonetheless, the number of cases that are prosecuted seems to be significantly lower than the number of persons infected in the countries in question. To this must be added all the cases in which a person has been exposed to the risk of infection without any infection being transmitted. Even taking into account that there is more than one aggrieved person in many criminal cases, there is every indication that only a minority of cases concerning infection transmission or exposure are prosecuted. This is presumably linked to the fact that the cases seldom come to the attention of the police unless the aggrieved person reports the offence. There seems to be a general trend, arising from the necessary relationship of trust between the health authorities and patients, for health care personnel and health authorities not to report to the police cases of infection transmission or exposure.

Analyses that have been carried out indicate that the incidence of criminal prosecution in relation to the number of HIV-positive persons in the country is somewhat higher in Northern European, and particularly Scandinavian, countries than in other countries in Europe and large parts of the rest of the world. One theory holds that this is ascribable to a high degree of confidence in the legal system and a sense of mutual responsibility between individuals in these countries.

All of the countries examined by the Commission have civil legislation relating to communicable disease control and public health work. The countries’ communicable disease control legislation varies somewhat, but is based to some extent on international cooperation. The laws authorise certain interventions in respect of individuals and the general public in situations where this is deemed necessary in the interests of public health. Coercive interventions will largely be relevant in connection with extremely contagious, serious diseases, and are presumably seldom used. Sexually transmitted diseases are covered to a varying degree by the communicable disease control legislation, systems for reporting communicable diseases, etc. The national health authorities generally ensure extensive communicable disease control efforts based on information, cooperation and voluntary measures.

In all countries that prosecute the transmission of infection or exposure to risk of infection, the criminal law approach is perceived as only a minor part of society’s efforts to protect the population against serious communicable diseases (communicable disease control). Criminal legislation is meant to be of a punitive nature in dealing with cases of reckless and unacceptable behaviour, even if the penal provisions in some countries are also seen as helping to promote attitudes and behaviour that could reduce the current risk of infection in society.

3.6 International obligations and recommendations

Chapter 8 presents an overview of relevant international obligations and recommendations.

The presentation shows that a number of bodies have issued statements which are relevant in various ways to issues that lie within the scope of the Commission’s mandate, primarily agencies within the UN system, but also bodies affiliated with the Council of Europe or the EU, and certain other agencies.

In international law – as in other areas of law – certain sources are binding or must be given great weight (often referred to as «hard law» in international law), while other sources are of lesser importance, although they may be interpretative factors and may in other ways be of greater relevance than the limited weight that is attached to them in purely legal terms («soft law»). For example, the countries that have participated in issuing a declaration may have assumed a political obligation to increase their efforts and resources in a field.

The human rights instruments contain fundamental standards with regard to such issues as the individual’s freedom relative to the state and participation in society (civil and political rights), but also impose requirements to the effect that the state must ensure that the basic needs of individuals are met to a reasonable degree (economic, social and cultural rights). There are several UN and Council of Europe conventions on human rights. The most important of these have been incorporated into Norwegian law through the Human Rights Act, and in the event of conflicting provisions shall take precedence over other Norwegian legislation.

The conventions are the only binding rules under international law in the field of human rights. Judgments delivered by the European Court of Human Rights (ECHR) pursuant to the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms are a major source of law with respect to interpretation of the convention, and individual states are bound under the convention to respect judgments against the state. Substantial importance is also attached to statements from other treaty bodies, such as the General Comments to the various UN conventions.

Many declarations and statements have a global objective and do not necessarily reflect the great cultural differences between regions and states. States have quite a free rein in terms of the importance they attach to «soft law» in their assessments of what is compatible with international human rights obligations. To a large extent, therefore, they will be able to take account of national factors, provided their interpretation is consistent with the convention texts with comments by the treaty bodies and ECHR jurisprudence.

The Commission gives an account of relevant content of several human rights which to some degree are of significance within the Commission’s sphere of activity, such as the prohibition against torture and inhuman or degrading treatment, the right to personal freedom and security and conditions for deprivation of liberty, the right to respect for private and family life, the prohibition against discrimination and the right to health.

The Commission notes that there is no «hard law» of direct relevance for the question whether it is consistent with the human rights to apply criminal penalties to the transmission of infection and exposure of another person to the risk of infection. Neither the conventions that have been ratified by Norway, nor the comments of the treaty bodies, nor judgments delivered by the ECHR address this issue directly. Moreover, nothing on this topic can be inferred with any certainty from the conventions. The same applies to EEA law. The statements that deal with this issue are clearly «soft law».

The Commission therefore finds that it is not contrary per se to human rights obligations that a country has penal provisions that either directly govern the transmission of infection and the exposure of another person to the risk of infection, or cover these acts in another way. However, the Commission emphasises that penal provisions and criminal prosecution must be in accordance with the general human rights standards in the field of criminal law, also where infection transmission or exposure is concerned. This includes the requirement of a fair trial and the requirement that penal provisions must be sufficiently clear to make the legal position foreseeable. The human rights instruments also lay down certain requirements as regards the execution of sentence.

Consequently, the Commission cannot see that it would be inconsistent with human rights to have special penal provisions on the transmission of infection and exposure of another person to the risk of infection in respect of specific diseases or more generally, limited, for example, by the criterion of seriousness. Foreseeability is an important aspect, and precisely this aspect will be easier to safeguard by means of special provisions in the field than through general penal provisions that protect life and health. In a special provision, the further conditions for a criminal penalty, including the standard of guilt, the importance of consent, the penalty level, etc. can be regulated in a way that is especially adapted to this type of case. States must be given a margin of discretion in formulating their criminal law and individual penal provisions, in which the legal tradition and other factors in the country may also be of significance.

Most of the declarations, statements, etc. which have a certain bearing on the issue of criminal penalties for infection transmission and exposure and the Commission’s other work concern HIV.

UNAIDS is the agency that is most actively engaged in the issue of criminalisation of transmission of infection and exposure of another person to the risk of infection, but its focus is limited to HIV. UNAIDS has expressed clear recommendations to the effect that the application of criminal sanctions in this field should be limited to cases where infection has been transmitted, and where such transmission has been committed with purposeful intent. In the international guidelines on HIV/AIDS and human rights, issued in 2006, the UN High Commissioner for Human Rights (OHCHR) and UNAIDS are less clear on this point, even though the guidelines could possibly be interpreted in the same direction. Moreover, these agencies recommend that no special penal provisions and no special statutory regulation of HIV transmission should be adopted, but that general penal provisions should be applied to the transmission of infection with purposeful intent.

A number of statements made by other bodies are based on the above-mentioned documents without adding any significant new elements. Certain bodies word their statements more vaguely than UNAIDS, for example in the form of recommendations that states should review their legislation with a view to repealing or amending legislation that could counteract efforts to prevent and treat HIV, or that could contribute to discrimination and stigmatisation, both of which could also refer to legislation regarding sexual orientation, sex work, etc. The Global Commission on HIV and the Law gives clear recommendations on what kind of penal provisions and criminal prosecutions to avoid in order to secure an effective, sustainable response to HIV that is consistent with human rights obligations. In the material found by the Commission, only the UN Special Rapporteur on the Right to Health states that the criminalisation of infection transmission and exposure is directly contrary to human rights. There does not appear to be a basis for such a statement in sources of law.

There seems to be little evidence to support some of the theories regarding the impacts of criminal legislation on infection transmission and exposure on which the recommendations of UNAIDS are based. Furthermore, the points of view are formulated with a global objective. Some UNAIDS work in the field is particularly focused on high-income countries, but here too significant variations will be seen in the different countries in terms of legal traditions, the application of criminal law and the level of penalties, as well as cultural factors related to confidence in the legal system and a sense of responsibility in human interaction, etc.

Chapter 8 also contains some discussion of human rights and international declarations, etc. related to such issues as the forced isolation of carriers of infection as a communicable disease control measure, testing for communicable diseases, prevention and treatment, personal data protection and the duty of confidentiality of health care personnel, infection control in prisons, and discrimination and stigmatisation.

3.7 Medical and social science knowledge base

Chapter 9 contains medical and social science background information.

An account is given of certain medical knowledge in the field of communicable diseases, primarily a selection of communicable diseases that are hazardous to public health, but also certain other diseases. The discussion focuses primarily on modes of transmission, the seriousness of the diseases, possible treatment and the incidence of the diseases in Norway. Further details of the medical aspects of HIV and AIDS are discussed in Appendix 1.

In accordance with its mandate, the Commission has sought to find scientific documentation for «possible individual or general deterrent effects of criminal regulation in respect of HIV, including whether current regulation might be construed as discriminatory, or might have an adverse impact on individuals’ behaviour, prophylactic strategies and willingness to undergo testing», and the significance of the threat of criminal sanctions for infected persons with regard to the attitudes of non-infected persons.

The Commission notes that it is generally difficult to find well-designed research with a methodology that can provide answers to questions concerning the intended and unintended impacts of laws. Moreover, the effect of a threat of a criminal sanction for the transmission of infection and exposure of another person to the risk of infection will probably be contingent on the culture and sub-cultures of the population. The Commission has sought to find relevant material from Norway, but also from other countries in Europe and North America, partly because the Norwegian material is extremely limited. HIV and criminal regulation issues are not a key focus of either Norwegian or international research on safer sex, sexually transmitted diseases and HIV testing behaviour and the living conditions and quality of life of HIV-positive persons. Admittedly, a certain amount of research literature deals with openness, discrimination, sexuality and living conditions among people living with HIV, but the vast majority of these studies do not shed light on issues related to criminal regulation. Moreover, the knowledge is seldom research-based and often consists of reflections on personal experiences, for instance in the form of the statements by expert panels or human rights activists. The existing research-based knowledge is often grounded in samples of dubious generalizability. Few or no studies have satisfactorily documented direct links between criminal regulation and the conduct of infectious persons or HIV-positive persons’ perception of discrimination or stigmatisation, or links between criminal regulation and the choice of protective strategies and willingness to undergo testing among persons who are HIV-negative or undiagnosed.

The reliability of most of the studies is limited because they are based on extensive self-selection and use self-reported measurements of safer sex behaviour and self-reported discrimination. From a scientific standpoint, it is particularly problematic that the theory regarding the negative effects of criminal regulation does not lend itself to empirical rejection. It is clear that a number of HIV-positive persons consider the current regulatory framework to be burdensome. At the same time, no effort is made in the available literature to seek alternative or supplementary explanations for why individuals avoid being tested and why HIV-positive persons may perceive themselves as victims of discrimination.

Studies of living conditions among HIV-positive persons give some indication of their perception of discrimination and stigma, openness about their HIV status, their perception of their state of health, etc. Concern about criminal regulation is addressed in some of the studies, including the non-representative Norwegian FAFO study conducted in 2009, in which 35 % replied that they were not worried about, and never thought about, the Penal Code provisions, while 49 % responded that they worried often or once in a while about section 155 of the Penal Code. Over half of the respondents replied that the provisions of the Penal Code had influenced their sex life, for most of them in the sense that they had less and safer sex.

Chapter 9 also describes various studies on sexual habits that are of interest as a more general backdrop as regards the population’s behaviour that is relevant for diseases transmitted by sexual activity, such as the number of sexual partners, the purchase of sexual services, assessment of risk related to sex and use of contraceptives.

It also contains a brief account of groups who are at particular risk of HIV infection.

Chapter 9 also gives a brief account of a number of published reflections and theories regarding sexual habits and protection against infection.

The ideology of gender equality plays a pivotal role in Norwegian society, and Norway is characterised by a relatively high tolerance for sexuality and sexual behaviours in population groups who have traditionally held subordinate positions. However, this does not mean that sexuality is not subject to restrictions and social and cultural constraints. A belief that culturally-determined aspects of human behaviour are in fact «natural» in a biological sense has implications for sub-groups of the population who, for various reasons, must or prefer to adopt a behaviour that differs from that of the heterosexual majority. Sexual standards are social constructs, and those who do not conform to these standards risk becoming social outcasts. If large sub-groups of the population were to break with existing norms and rules of society, the norms can be changed precisely because they are social constructs.

In Norway, there is a relatively high degree of openness as regards sexuality, yet we nonetheless have a somewhat ambivalent relationship to sexuality. Intercourse that is legitimised by love and affection is regarded as an expression of «good sexuality», while sex solely for the sake of pleasure is not regarded very highly.

The trend is towards a greater degree of attitudinal and behavioural equality between the two sexes. At the same time, gender differences still exist. A rapprochement between the sexes in terms of sexual behaviour does not automatically mean that women’s and men’s perception of reality and the conditions for sexual interaction have also become more similar.

All the Nordic countries are often seen as having relatively liberal attitudes towards sexuality. In this cultural context, it is the responsible, and not the passionate, sexuality that is socially accepted and idealised. A consequence of this is that unless pregnancy is planned and wanted, individuals are expected to conduct themselves like responsible citizens and use contraception during intercourse. The use of contraception is not socially stigmatised, and is considered to be a shared responsibility. For most young people, it is naturalto see themselves and their partners as fertile individuals. For most heterosexual couples, therefore, it is naturalto make contraception an integral part of their sexual behaviour. As far as protection against infection is concerned, the situation is considerably more complicated. People seldom base their behaviour on – or accept as natural – the assumption that they themselves or their partners may be carriers of sexually transmitted diseases. Basing their behaviour in a sexual context on such an assumption will in all likelihood be perceived by their partner as a sign of being unnaturally suspicious.

Being in a steady relationship is one reason for assessing as low the risk of being infected with a sexually transmitted disease. Being in a committed relationship generates a sense of security, and this security is linked to having faith in and trusting one’s partner. As a result, people who are in committed relationships test themselves less often for HIV and chlamydia. In Norway, condoms are primarily used as a means of preventing an unwanted pregnancy, and not as protection against sexually transmitted diseases, and after a while young people often replace the use of condoms with hormonal contraception. The processes involved in assessing the risk of chlamydia and HIV differ somewhat. Young people perceive HIV as being different from other sexually transmitted diseases. Men who have sex with men are more aware of being in the risk zone than heterosexual men and women, which reflects the knowledge that men who have sex with men are more exposed to HIV infection than other groups. Sexual orientation probably also impacts indirectly on the assessment of the risk of chlamydia and HIV through the number of partners.

The Commission presents certain hypotheses about the significance of the cultural context, etc.

The effect of criminalising the transmission of a communicable disease that is hazardous to public health is probably contingent on culture and sub-culture. In Norway, such a law could have an effect in the heterosexual context. In our Nordic culture, the responsible, and not the passionate, form of sexuality is the ideal. In the course of many years of family planning work, for instance, we have developed a rational, systematic way of dealing with our sexuality. In this cultural setting, it is considered legitimate to impose a responsibility on sexual actors for their actions, and we accept this responsibility. In a culture of passion, this is meaningless. In our Norwegian and Nordic culture, it is accepted that persons who are HIV-positive have sex, but have (a special) responsibility not to infect other persons. Because we accept this premise, a law will also be accepted and an effort will be made to comply with that law by individuals from our culture who could transmit infection. The situation may differ somewhat in the case of infectious persons from other cultures.

Furthermore, several studies show that a larger percentage of HIV-positive men who have sex with men have unprotected sex, compared with heterosexuals who are HIV-positive. An underlying motive for human behaviour is the pursuit of esteem, and this pursuit is inextricably linked to the construct of the self. In an environment where there are negative attitudes towards homosexuality, children will probably not learn – or internalise – positive attitudes towards homosexuality. Growing up and living in a homophobic environment is likely to significantly reduce the individual’s level of internal self-esteem. Testing positive for HIV imposes yet another stigma on the individual which diminishes the man’s self-esteem. There is reason to assume that many HIV-positive men who have sex with men, with low self-esteem, will tend to attribute their HIV-positive status to internal rather than external factors. This can lead to perceived shame, isolation and self-censure. In this context, refraining from sexual activity can be seen as a coping strategy. However, the desire for sexual activity persists, and the result may be unplanned and unprotected sex. Several surveys show that unsafe sex is common among HIV-positive men who have sex with men. Several studies describe links between the use of alcohol, narcotic substances and risky sex. There does not appear to be a link between unsafe sex and viral load or the use of HIV medication.

Unsafe sex among persons who are HIV positive should also be viewed in the context of treatment optimism. It has thus been documented that the percentage of men who have unsafe sex with men has approximately doubled since an effective treatment for HIV was introduced in 1996. One study concludes that the reduction in infection risk attributable to the fact that HIV-positive individuals are undergoing treatment is neutralised by the substantial increase in unsafe sex.

Finally, chapter 9 gives a brief description of infection control efforts, with focus on primary prevention, infection control assistance in public health services and the organisation of infection control activities in municipalities. In connection with sexual education, mention is also made of studies of the effect of interventions to prevent sexually transmitted diseases and unwanted pregnancies among adolescents and young adults.

3.8 The views and experiences of stakeholders

Chapter 10 presents views on the issue of criminal regulation and criminal prosecution of infection transmission and exposure, put forward by organisations and special-interest groups, and views and experiences communicated by infected persons.

Views have been expressed in connection with legislative processes, i.e. the increase in 2003 of the maximum penalties in section 155 of the 1902 Penal Code, and the adoption in 2009 of sections 237 and 238 of the new Penal Code.

Stakeholder organisations, groups and individuals have also submitted their views in other contexts. There is an international engagement in the field, which is described briefly. Reference is also made to surveys on the living conditions, etc. of HIV-positive persons.

In the winter of 2011–2012, the Commission arranged a consultation meeting to which it was possible to submit written statements.

Reference is made to and excerpts are quoted from the consultation statements received, including from a person himself being prosecuted for exposing another person to the risk of infection.

Many of the consultative comments and views that have been presented in other connections concur to a large extent. Most of them are critical of current and adopted criminal legislation and some of them of the way that this legislation is implemented in practice. Some express more differentiated views. On the whole, the views concern HIV and infection or the risk of such in connection with sexual activity.

Many of those who have submitted statements are of the view that no criminal penalties should be applicable to such offences, or that they should be limited to the actual transmission of infection or to very special cases, in line, for instance, with UNAIDS’ recommendations that criminal sanctions should only be applicable to the transmission of infection with purposeful intent.

It is claimed by many stakeholders that the threat of criminal sanctions does not serve the objective of preventing infection, and thus the protection of public health, and that, on the contrary, it has a counterproductive effect. They point out that the threat of criminal sanctions could discourage persons who may be infected from undergoing testing, based on the premise that persons who do not know that they are HIV-positive will avoid prosecution or conviction. They also point out that the threat of criminal prosecution may make it more difficult for individuals to be open about their infection status.

Furthermore, many consider that the threat of criminal sanctions contributes to the stigmatisation of HIV-positive persons, even though the wording of the legal provisions do not make specific reference to HIV, because in the past few decades the cases prosecuted have primarily concerned HIV transmission or the risk of such transmission. Some take the view that there should be no special penal provision governing infection, and that general penal provisions governing bodily harm, etc. can be applied insofar as such matters should be punished.

A common viewpoint among those who have submitted a statement is that both parties in a consensual sexual relationship have an equal responsibility for ensuring protection against infection. The infected person cannot be made solely responsible. It is also maintained that a threat of criminal sanctions for the infected person could result in other persons taking it for granted that infected persons will inform them of their status or provide protection, and that this thus undermines the aim of ensuring that all parties assume responsibility for protecting themselves against infection.

In the view of many stakeholders, no criminal penalties should be applied when the infected person has disclosed his or her infection status and the partner has nevertheless consented to unprotected sex.

Several consultative statements point out that only some of the individuals who engage in behaviour that places others at risk of infection are criminally prosecuted, and that in some cases they are reported to the police after a relationship has broken up, despite the fact that the aggrieved person was aware of the risk of infection during the relationship.

Some bodies also cite Norway’s role in international efforts, such as in the field of development, and consider it problematic that Norwegian law comprises a threat of criminal sanctions in this area contrary to international recommendations.

Chapter 10 also sets out the grounds for the stance of one of the Commission members, who is living with HIV, concerning the issue of applying a criminal penalty for infection transmission and exposure.

Furthermore, some information is provided on other ways in which the Commission has gained an insight into the experiences and views of persons affected, such as through the knowledge and experience of Commission members from relevant fields and persons who have held lectures for the Commission. The chapter concludes with a brief account of the importance attached by the Commission members to the views and experiences of stakeholders.

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.