Facts
The case concerns a man named X., who between April and June 2003, knowingly had unprotected sexual intercourse with his then-partner Y. while being HIV-positive. As a result, Y. became infected with the HIV virus. X. was found guilty by the High Court of the Canton of Zurich of serious bodily harm under Art. 122 para. 1 of the Swiss Criminal Code and the dissemination of human diseases under Art. 231 of the Swiss Criminal Code, and was sentenced to a partially suspended custodial sentence of 30 months.
X. appealed to the Federal Supreme Court and requested to be acquitted of the charges of serious bodily harm and the dissemination of a human disease. Alternatively, he should only be found guilty of completed simple bodily harm.
Considerations
The Federal Supreme Court states that the previous case law, according to which HIV infection is to be classified as a life-threatening serious bodily harm within the meaning of Art. 122 para. 1 of the Swiss Criminal Code, can no longer be upheld in view of scientific findings and medical treatment advances.
While HIV infection still represents an adverse pathological change with a disease value, modern antiretroviral combination therapies can delay the onset of AIDS, halt the replication of HIV viruses, and significantly increase the life expectancy of those infected. Thus, the significant probability of a fatal course and consequently the danger to life within the meaning…