It's a court ruling that is being quoted repeatedly in Germany these days: "An HIV-positive person who has sexual intercourse with another person without using protection can be accused of grievous bodily harm." The court that made the statement following the conviction of a 38-year-old man in the city of Würzburg on Jan. 17, 2007 also ruled that there would be no criminal liability "if the sexual partner was aware of the infection."
After the arrest of German pop singer Nadja Benaissa last Saturday, the spokesman for the public prosecutor's office in the city of Darmstadt used very similar words: "If someone who knows that they are HIV positive, does not tell their partner and infects their partner, then that is grievous bodily harm." And if there is no infection then "it is attempted grievous bodily harm."
That may be the theory, but it could be difficult proving it in practice. Investigators in the case have since ordered an immunological report to clarify if the 26-year-old singer actually infected her former partner with HIV.
Experts like Norbert Brockmeyer, a spokesman for HIV/AIDS, a network of experts funded by the German government, is doubtful if such a report can be of much value.
"The absolute proof that person A infected person B cannot be provided by medical means after a number of years," Brockmeyer, a professor of dermatology and allergology, told SPIEGEL ONLINE. He explains that the virus would have mutated too much in each of the bodies -- particularly if those infected have undergone medical treatment.
According to those familiar with the case, the last reported sexual intercourse between Benaissa, a member of the No Angels girl group, and the man who has brought charges against her took place in spring 2004.
Even if the medical examinations were to bring forth some as yet unknown information, this would not clear up a question of "central importance," argues Berlin attorney Henrike Weber. "Did the accused set out to endanger the life of the victim or did the man think it was at least possible and accept it." In other words, did he know what he was doing and, therefore, harm himself?
That could also be difficult to prove, Weber told SPIEGEL ONLINE. "One has to very carefully examine the lifestyle of the accused and the circumstances of the deed," she said, adding that there are very few cases where "an illness is used as a weapon."
Weber represented a victim of deliberate HIV infection in a case that attracted huge publicity back in June 2007. A court in Cologne sentenced a 38-year-old unemployed mechanic to eight years in jail for grievous bodily harm because he had deliberately infected four women with the virus. The convicted man, Stephan S., had sent one of his victims an SMS message: "Have lots of fun with HIV!"
He had found his four victims in chat rooms, presenting himself as a well-to-do architect promising to be the love of their lives. According to the prosecution, however, he simply wanted to have unprotected sex with them. Stephan S. also had sexual relations with other women who did not become infected.
'Irresponsible, Selfish and Ruthless'
Only a few months earlier a court in Würzburg, in southern Germany, had sentenced a 38-year-old Kenyan man to five and half years in jail for nine counts of grievous bodily harm and attempted grievous bodily harm. The court found that the HIV-positive DJ had knowingly infected seven ex-girlfriends with the deadly virus. The presiding judge described his actions as "irresponsible, selfish and ruthless."
Nevertheless, the current investigation into Nadja Benaissa seems unusually harsh. The Deutsche AIDS-Hilfe (DAH), an umbrella group representing regional organizations working with HIV/AIDS, has criticized the prosecutors' actions. "Nadja Benaissa should be released as soon as possible," the organization has announced. It said that, "after assessing the information that has so far been made available," the arrest seemed to be a "disproportionate."
The public punishment of people with HIV/AIDS could easily create the illusion that the state had the problem under control, says DAH. People could then possibly become complacent about protecting themselves.
Another outcome of the criminalization of HIV transmission could be that people opt not to get themselves tested out of fear of being arrested. After all if someone does not know they have AIDS then they cannot be prosecuted for having unprotected sex.
Christian Schertz, the Berlin lawyer representing Benaissa, says there is no legitimate evidence that would indicate that the singer is currently engaged in any criminal activity. He also argues that the press release by the Darmstadt public prosecutor did not conform to the press law in the state of Hesse.
The authorities, Schertz says, should not have made any statement or given any details about the charge. "At present this is exclusively about an ongoing investigation," he writes in a statement. It has not been proven that his client is responsible for the infection with HIV of another person, Schertz insists.
Nevertheless, Benaissa is still sitting in jail and prosecutor's office spokesman Ger Neuber said Wednesday that there has been no appeal against her remand in custody. He said that the strong suspicion of a crime and the risk she would reoffend were too great to ignore.
The infected man who filed the charges claims he tried to contact Benaissa several times. Neuber says that the prosecutors tried to give the singer a "fair hearing" but she didn't respond.