Interview and text by Juulia Kela.
The use of Finnish criminal law to prosecute the transmission, exposure, or non-disclosure (not telling sexual partners about your positive HIV status) of HIV is an ongoing, understudied field of criminalization. Along with Sweden, Norway and Denmark, Finland is one of the six countries with the highest rates of prosecution per capita of people living with HIV (GNP+, 2010). To complicate matters, Finnish criminal cases about HIV transmission, exposure, or non-disclosure are held in secret – and as co-operative body of Nordic organizations for people living with HIV, HIV-Nordic stated in 2014:
Neither has anyone counted all HIV [legal] cases in Finland. It is estimated that there has been a total of 15-20 cases. The Supreme Court of Finland has ruled in a total of five cases since 1993.
Since this publication, there have been four more cases ruled by the Supreme Court: two in 2015, one in 2017 and one in 2021. These cases represent a variety of details, including whether or not the virus was transmitted. However, what these cases share is the stigmatizing effect they have. As director of NGO Positiiviset ry Sini Pasanen puts it:
It has definitely been one of the most stigmatizing matters, for sure the one that causes the most uncertainty. Many people living with HIV have said that they have feelings like they are some kind of criminal. The removal of that label is still being waited for.
Of course, the label of criminal is not what the case really is, but rather, it lives in people’s perceptions: people don’t know how they can have sex, whether it’s enough that you’ve told someone – because who will prove whether you have or haven’t? It has really been the greatest burden, this question of criminality and the lack of certainty over the matter that has bothered people.
And the fact is that people living with HIV are regular people who haven’t been in contact with criminal law before, and then, all of a sudden, they’re told that if they have sex they can be charged under criminal law.
In 2015, the Supreme Court ruled over two cases in which the criminal liability of the accused was brought into question. In both cases, the accused had had unprotected sex without disclosing their HIV status. In both cases, the accused was taking HIV medication and did not transmit the virus. Only one of these decisions was overturned, leaving many ambiguities over the status of HIV criminalization in Finland.
On September 15th 2021, the Finnish Supreme Court overturned a conviction of aggravated assault for an HIV positive individual who had not disclosed their status to their partner. The accused was on medication – and therefore could not transmit the virus to the partner. Does this mean that the ‘gap’ between the medical fact of un-transmissibility and the use of criminal law in ‘controlling’ HIV is closing? In order to find out about the significance of the decision and the state of HIV criminalizations in Finland, I spoke to two NGO experts in October 2021.
Sini Pasanen is the Executive Director of Positiiviset ry and has worked on HIV advocacy on Nordic and European levels.
Teppo Heikkinen is a specialist at NGO Hivpoint and works with men who have sex with men.
J: What significance does the new Supreme Court decision have regarding the criminalization of HIV in Finland?
Teppo: The interpretation of the Criminal Code is changing and of course we’re pleased with that – how if you have an undetectable viral load and have treatment and if you don’t disclose your status, then the consequences won’t be as they were before – you might not end up in jail.
Sini: The Supreme Court decision has been long-awaited – and it’s good that we’re finally getting some clarity on the matter because so far, it’s all been very unclear. There are a few factors in this case that are of interest to us – that the ejaculation was onto a sheet, that there was intercourse only once – but what about if there had been more than one time, or what if the situation was somehow different?
And then there’s still the question of an HIV positive individual who is not on medication – or has, for some reason – there are a few rare cases where the viral load does not drop to undetectable levels despite medication – we can’t let it be assumed that they are somehow criminal.
But still, this doesn’t stop anyone from going to make a report to the police. The fact is that the transmission and exposure of HIV is under criminal law – and how we interpret this law is not explicit in criminal law itself. This also means we don’t have a specific part of the law to change. So, to an extent, we’re still having to work with people’s images and perceptions.
But the Supreme Court decision is still very welcome and gives us at least some clarity. Still, I don’t personally think that the job here is done, and that we can all lay back now because everything is clear and there is no problem – this is not the situation.
J: And so, there are ambiguities left over – who has the say over these? Who can say what will happen?
Sini: Nobody! It has been a cat-and-mouse game where the judicial system demands that doctors tell patients who have received a positive status that they may end up getting charged for non-disclosure … and then when doctors tell patients that this is the case, the judiciary appeals back to the fact that look, doctors have told patients – so there must be a problem here.
It’s totally fair that doctors tell their patients that they may end up in court – but then the judiciary ends up interpreting that as doctors tell their patients this, the people who end up in court must be guilty.
J: What does the history of criminalizing HIV look like in Finland?
Sini: Everywhere in the world where the spreading of or exposing someone to HIV has been criminalized, the first person who has been charged has been an immigrant whose photo has ended up published in media.
J: And this is the case in Finland too, right?
Sini: In Finland as well, yes. The first several whose pictures have been published in media have been immigrants. And personally, I think it sets the thought of what’s being done here.
J: Criminal charges have fallen somewhat with the development of medication & knowledge about HIV transmissions – from attempted manslaughter in the earlier 2000s to assault now. How do you see the relationship between scientific knowledge about HIV transmission and the law?
Sini: Well, I think that Finland is very behind on this. I don’t understand how we can have a judicial system that doesn’t believe in scientific research. That’s neatly what this is about.
… the entire scientific community is behind the fact that HIV doesn’t spread if you’re on medication – and yet we haven’t seen this fact being taken into account in criminal cases in Finland.
And it’s very strange and problematic that we have closed trials in Finland. The trials around the transmission of and exposure to HIV are closed and secret. We don’t know what they talk about in there. It’s difficult to go and change anything when we don’t even know what they’ve been discussing.
Teppo: But at the same time, doctors have also given out fair statements during criminal cases – saying that HIV is not transmissible if the viral loads aren’t at measurable levels – so they’ve been in a central role, in a way, in pushing for change in this legal practice.
J: I’ve heard that in the 2000s the police were still tracking HIV cases in criminal cases and that NGOs have asked why the cops have been doing this and not health services?
Teppo: … and then to think that media images [of people accused of spreading the virus] were just circulating publicly, and the knowledge that the police are doing this … so it has definitely impacted those who have been living with HIV.
… and it must have been terrifying and worrying about what kinds of processes you might end up being caught in even if you had acted ‘responsibly’ and been protected.
Sini: This is still going on – and has been going on very recently – it has not been long at all since the police have last been doing this. Unfortunately, they’ve thought because of the law that this is the correct thing to do.
J: How can this be happening, how is this in the hands of the police and not healthcare workers?
Sini: Exactly .. good question. It’s criminal law that enables this. But no expert on this agrees that it should be the police who track these cases but healthcare workers. And we have cases where someone has told somebody that they have the virus, and this happened recently – and this partner went to the police and not even to take an HIV test first – but rather to the police to go and report them. Just last year.
J: What challenges lie ahead in NGO work related to HIV criminalizations, and what other images of criminality or realities are you tackling in your work?
Teppo: When I follow press announcements related to HIV, it’s regrettable how people living with HIV are still portrayed. On World Aids Day it’s a bit different and more appropriate, but otherwise, in Finnish and international news there’s still this negative image, one about the ‘dangerousness’ of people living with HIV.
Maybe around five years ago in Joensuu – someone had spat at a police officer, which is of course rude – but it was reported that the officer had immediately taken an HIV test. So, around five years ago it obviously still wasn’t clear to the police that spitting isn’t a way to contract the virus. So this knowledge, when it comes to groups other than healthcare professionals and HIV specialists … is still quite bad.
Sini: HIV infection and stigma related to HIV intersects with other marginal groups strongly – those who use drugs, those in sex work, sexual and gender minorities. Intersectional stigma comes about from this and is experienced – people are criminalized from several different angles – drug use is criminalized, and while sex work isn’t criminalized directly, there are traits present related to buying and selling sex that might prevent people from accessing help.
We can’t say that HIV is just a chronic illness – today, it’s more of a social illness than a chronic one defining people’s lives.
References:
HIV-Nordic (2014) Annual reports. http://hiv-norden.org/documents.html.
GNP+ (2010) The Global Criminalisation Scan Report 2010. https://www.hivpolicy.org/Library/HPP001825.pdf.