Advocacy groups in the Netherlands have been successful in stopping prosecutions in recent years. HIV organizations in the Netherlands came together and became actively involved in individual cases.
They took action to train the defense lawyers of people living with HIV in how to use medical and scientific information and improve their questioning of expert witnesses. Between 2001 and 2006, HIV organizations worked to build up evidence on the relationship between treatment, reducing a person’s viral load and the infectiousness of their HIV. They also provided lawyers with information and advice on how to use the European Treaty on Human Rights (Treaty of Rome, 1950) to better defend their clients.
In addition to their active work on individual cases, the Dutch Working Group on Criminal Law, brought together the Dutch HIV Association with the Dutch AIDS Fund and STI HIV Netherlands to form a high-profile advisory committee. The group was chaired by the foremost Dutch expert on medical ethics, and published a report: ‘Detention or Prevention?’ The report brought together the legal, human rights and public health arguments against prosecutions and criminalization. It received wide reaching publicity and was a useful tool to lobby the Departments of Health and Justice.
The Dutch Supreme Court took a position (in 2005 and again in 2007) that in ‘normal circumstances of two consenting adults deciding to have sex out of their free choice’ there is no place for criminalization/criminal law regardless of whether HIV transmission occurred or not.
The Supreme Court argued that if Parliament wanted to criminalize HIV they should provide clear legal provision for that. The Dutch Government decided not to devise that sort of provision.
The Supreme Court exempted willful or intentional transmission (for example if a person forcibly injected another with HIV infected blood).
Read the Dutch Working Group on Criminal Law's report: 'Detention or Prevention?'.