Intentional or negligent transmission of HIV is classified as bodily injury according to German law and is therefore punishable.
Whether a punishment is actually imposed, however, depends upon whether or not the HIV-negative person knew about their partner’s HIV infection and consented to unprotected sex.
Those who do everything they can to protect their partner, by using condoms for instance, are on the safe side criminally speaking in any case.
If the partners mutually decide to stop using condoms in the relationship, the agreement should be made or documented in the presence of witnesses.
Whether a viral load below the detection limit offers sufficient protection for the partner is a question that is answered in a wide variety of ways in the German courts.
You are not obligated to inform sexual partners of your HIV infection in Germany.
In Germany, there is no special law that makes the transmission of HIV a punishable offence. Judgment is made in accordance with Sections 223 and 224 of the Criminal Code. Conditional intentional or negligent transmission of HIV is heavy bodily injury according to the Criminal Code.
Unprotected sex that carries no infection, is considered attempted bodily injury and is also punishable.
Accordingly, people with HIV have to take the necessary measures to protect their partners. The obligation is considered satisfied when the rules for safer sex are followed. There is then no threat of criminal consequences – not even when an infection is transmitted regardless, because the condom broke or slipped, for example. If the sexual-partner knows and agrees to the risk, the criminal offense is also ruled out.
Beware: unprotected sex between an HIV-positive person and an HIV-negative person is generally punishable in several other countries – even when the HIV-negative person, knowing about the infection, expressly foregoes the use of protection (in Austria, for example).
People with HIV are liable to prosecution if they have unprotected sex and their partner does not know about their infection. The legal position here is clear.
In most cases that go to court, however, the situation is more complicated. Often a couple quarrels and breaks up, then one files a lawsuit against the other.
It is often the case that the partner knew about the HIV infection. If both partners mutually chose not to practice safer sex in these kinds of cases, then the HIV-positive person is not liable to prosecution.
These arrangements are very difficult to prove in court, however. Arrangements are often made when those involved are not thinking clearly, for example, because they are in love or high on drugs.
But some couples also consciously decide not to use condoms above all when the viral load of the HIV-positive partner is below the detection limit. The risk of infection is then very small (see “Viral load method” and the next section).
Unprotected sex (part 2)
Unprotected sex (Part 2)
When people with HIV are taking a combination therapy that works well and no HIV viruses have been detected in their blood long-term, then transmitting HIV is very unlikely.
Now, is that considered to be sufficient protection in a case brought before a court of law? Thus far, the courts have passed very different judgments in these kinds of cases. The judgments depend largely upon the independent experts who are appointed.
Some judges consider a viral load below the detection limit to be sufficient protection.
Others question whether the viral load below the detection limit is sufficient protection. If the HIV-negative partner has not been informed about the HIV infection, then the judges still classify the unprotected sex as (attempted) bodily injury.
To others, the situation looks different when both partners in a relationship are fully aware of the consequences and decide together after careful consideration not to use a condom.
Those who want to be on the safe side of the law can record their arrangements in writing or in front of witnesses. Witnesses, for example, could be the specialist doctor or an AIDS service organization counselor.
In Switzerland, a viral load below the detection limit is already considered sufficient protection before a court of law.