Facts
The case concerns a Kenyan national, X, who infected his partner, Y, with the HIV virus following unprotected sexual intercourse. X had been aware of his seropositive status since 1990, but had concealed this information from Y. The relationship between X and Y began in 1981 and had periods of separation and reconciliation. In 1992, Y demanded that X be tested for HIV before resuming their intimate relationship, but X lied about his seropositive status. The two had unprotected sexual intercourse on several occasions, resulting in Y's infection.
X also had unprotected sexual intercourse with another person, Z, without revealing his seropositive status, but Z was not infected. The court convicted X of serious bodily harm and spreading a human disease.
Considerations
Consideration 1: The court examined whether X had acted with recklessness in infecting Y with HIV. Recklessness is given when the offender considers the realization of the offense as possible, but acts nonetheless, because he accepts the realization of the offense in case of occurrence.
Consideration 2: The court considered that HIV infection constitutes serious bodily harm and a dangerous and transmissible human disease. The spread of HIV is punishable under Article 231 of the Swiss Criminal Code (SCC).
Consideration 3: The court examined whether X had acted with conditional intent in infecting Y. Conditional intent is given when the offender considers…