Johanna Westeson - The ICHRP

unprotected sex), and can prohibit an HIV-positive person from sharing needles with
others. 227
On the other hand, case law shows a tendency to restrict the scope of criminal law to cases
of intentional or at least actual transmission. The British Appeals Court, as seen above, has
grappled with the notion of consent and effectively limited criminal liability to cases where
no consent to the risk of transmission, or no credible belief that such consent existed, can
be established. The Swiss case emphasizes that there must be real, as opposed to only
hypothetical, risks of transmission. The Dutch Supreme Court has established the most farreaching
rule, effectively barring convictions for grievous bodily harm in cases of nonintentional
transmission, with its reasoning around substantial risk and the need to establish
intent to cause harm.
The legal rules discussed above are all, with the exception for the Tajik provision, general
criminal law rules and not STI/HIV or even disease-specific. Transmission can be
punished through provisions on assault or the causing of grievous bodily harm. Where the
crime can be committed through recklessness (in Hungary or the United Kingdom) or
conditional intent (in the Netherlands), penalization will only happen when actual
transmission has taken place – though the Dutch case law, as discussed, suggests that there
is less concern with actual transmission and more with the level of risk involved.
Convictions for intentional transmission, where attempt can also be punished, are in fact
very unusual.
2C. AGE OF CONSENT
1. Introduction
The legal age of consent is the age over which young people are considered by law capable
of consent to sexual conduct. The notion of age of consent is based on an assumption that
children, being more vulnerable than adults, need special protection against sexual abuse,
and that there is a certain age under which the consent of the child becomes merely
fictional. Consequently, sex with a person under that age will be prosecuted as statutory
rape.
The overall theme for this chapter is the agency/autonomy of the minor to use his/her body
for sexual purposes. At what point has the underage subject been entrusted agency over
his/her (sexual) body? By determining that age, has the state struck a reasonable balance
between the legitimate state interest in protecting minors from sexual abuse and coercion,
and the equally legitimate right of the young person to explore his/her sexuality?
Differently put, are considerations of freedom from sexual harm framed in a way that also
respects the evolving capacities of the child? Are rules on age of consent nondiscriminatory,
regardless of sex and sexual preferences, or is there a difference in
treatment of boys and girls, on one hand, and of same-sex conduct and opposite-sex
conduct, on the other?
227 According to § 2, Chapter 4 in Swedish Communicable Diseases Act (2004:168). Only available in
Swedish.
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