OFFENSES AGAINST PERSONS ADMINISTERING HARMFUL SUBSTANCES TO OTHERS

Ruling on the appeal brought by:

– Mr Gil X …,

against the judgment of the Court of Appeal of AIX-EN-PROVENCE, 13th chamber, dated September 9, 2009, which, for administration of substance s harmful resulting in permanent disability, sentenced him to three years’ imprisonment and ruled on civil interests;

Considering the brief produced in demand and in defense;

On the single ground of appeal, based on the violation of articles 6 of the European Convention on Human Rights, 121-3, 222-9, 222-11 and 222-15 of the penal code, preliminary, 166, 167, 427, 591 and 593 of the Code of Criminal Procedure, lack of reasons, lack of legal basis;

“in that the judgment under appeal found Mr X … guilty of s harmful resulting in mutilation or permanent disability and sentenced him to three years’ imprisonment;

HIV positive; that it is also common ground that the HIV virus contained in semen is asubstance harmful to health and that this substancehas indeed been administered by the accused during consensual sexual relations; that, with regard to the moral element of the infringement, Mr X … had knowledge of his contamination already old for which he had consulted and had to follow a treatment; that the accused does not deny having failed to inform his partner of his seropositivity; that he acknowledged having been fully informed at the time of his relationship with his partner of the modes of transmission of HIV as well as the need for protection during sexual relations; that accepting or requesting in these conditions unprotected sex MX … could not ignore the risks of contamination associated with this behavior; that in this way, knowingly, silencing his HIV status, he voluntarily made Mrs. Y run … a very serious risk for his health and his life; that the offense of administering asubstance liable to be harmful to health is therefore made up of all its elements; that in the alternative, the accused maintains that assuming that the offense of administration of substances harmful is established, the repressive provisions provided for by article 222-9 of the penal code cannot be applied in this case, the facts not having resulted in mutilation or permanent disability; that thus, only the provisions of article 222-13 of the penal code would be applicable; that the consequences of the offense being an incapacity for work of less than eight days or an absence of incapacity for work; but that contamination by the human immunodeficiency virus is irreversible in the knowledge of science and medicine; that this contamination is followed by replication of the virus, which leads to the destruction of a very large quantity of lymphocytes, in several phases and that only antiretroviral treatments are likely to delay the development of contamination; that, already in the report of Doctor Z … of April 11, 2003 appeared a strong increase in the viral load of Mrs. Y …; that the expert then reported that she was regularly monitored at the Marseille Human Immunodeficiency Information and Care Center and that in view of the evolution of her immune status and the acceleration of viral replication, the need for regular treatment of antiretroviral therapy was to be expected in the near future; that it results from the medical certificate of June 9, 2009 established by doctor A … that Mrs. Y … had indeed to follow, from 2004, an antiretroviral treatment because of a significant decrease in its cluster differentiation rate 4; whereas, although this treatment made it possible to control the replication of the virus, the immune reconstitution still remains imperfect; that Mrs. Y … had to undergo quarterly consultations with viro-immunological assessment, besides a balance of annual synthesis allowing to detect complications of metabolic order, but also cancerous; that his state of health required examinations with specialized blood tests and a whole series of consultations, in particular psychological, intended to manage the various complications inherent in the infection; that, according to this doctor, the burden of seropositivity is increasingly difficult to bear psychologically; that contamination and antiretroviral treatment, which have become essential because of the effects of this contamination (dual therapy in 2004 then triple therapy since 2005) have generated physical (physical and physiological changes linked to treatment), psychological, social, economic, family and sexual consequences; that it follows from the foregoing that the offense of administeringharmful substance attributable to Mr X … thus resulted for Mrs Y … a serious viral affection generating a definitive attack of the whole of his organism and constituting a permanent infirmity within the meaning of the provisions of article 222-9 of the penal code; that it is rightly that the court, drawing from the circumstances of the cause the legal consequences which were required, retained the accused in links prevention; that consequently, the referred decision will be confirmed on this head;

“1) while the medical certificate established on June 9, 2009 by doctor A … was not communicated to Mr X …; that the rights of the defense have, thus, been ignored;

“2) whereas, there is no offense without intention to commit it; that the court of appeal should therefore investigate whether, as he was maintained, Mr X … had not denied his seropositivity to the point of losing any awareness of the risks that he could pose to his partner;

“3) whereas the HIV seropositivity, the evolution and permanence of which are unknown in the state of current scientific data and which does not necessarily have definitive in nature, cannot constitute a permanent disability “;

Whereas it follows from the judgment under appeal and from the procedural documents that Ms. Y … lodged a complaint on 2 May 2000 against Mr X …, accusing him of having deliberately communicated to him the human immunodeficiency virus ( HIV) during unprotected sex; that after the information open on the facts denounced, Mr X … was referred to the criminal court under the prevention of the offense of administration of substance s harmful having resulted in permanent disability of the victim;

Whereas, to find him guilty of this offense, the judgment holds that, knowing his already long-standing HIV infection for which he had to undergo treatment, the defendant maintained for several months unprotected sexual relations with his partner while concealing from him voluntarily his state of health and thus contaminated by the sexual way the complainant, now carrier of a viral affection constituting a permanent disability;

Whereas in the state of these statements, the court of appeal characterized in all its elements, both material and intentional, the offense envisaged and repressed by articles 222-15 and 222-9 of the penal code;

From which it follows that the plea, which, in its first branch is based on a pure allegation and which, for the rest, is limited to calling into question the sovereign assessment, by the trial judges, of the facts and circumstances of the cause, as well as evidence contradictorily argued, cannot be admitted;

And considering that the stop is regular in the form;

DISMISSES the appeal;

FIXED at 2 500 euros the sum that Mr X … will have to pay Mrs Y … under Article 618-1 of the code of criminal procedure;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberation, in the training provided for in article 567-1-1 of the code of criminal procedure: Mr. Louvel president, Mrs. Harel-Dutirou advisor rapporteur, Mr. Palisse advisor of the chamber;

Chamber clerk: Mrs Krawiec;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

Publication: Criminal Bulletin 2010, n ° 147 Contested

decision: Aix-en-Provence Court of Appeal of September 9, 2009

Titrations and summaries: INFRINGEMENT OF THE PHYSICAL OR PSYCHIC INTEGRITY OF THE PERSON – Intentional attack on the integrity of the person – Administration to others of substances harmful to health – Constituent elements – Knowing transmission of the virus of the human immunodeficiency through the sexual route

Justifies its decision the court of appeal which, to find the defendant guilty of the offense of administering a substances aggravated harmful effects foreseen and punished by articles 222-15 and 222-9 of the penal code, retains that, knowing his already long-standing contamination with the human immunodeficiency virus (HIV) for which he had to undergo treatment, he maintained for several months unprotected sexual relations with his partner by voluntarily concealing her state of health and contaminating her, making her now the carrier of a viral disease constituting a permanent disability

Previous case law:On the constitution of the offense of administering to others substances harmful to health by knowingly transmitting the human immunodeficiency virus through the sexual route, to be compared: Crim., January 10, 2006, appeal No. 05-80.787, Bull. crim. 2006, n ° 11 (rejection)

Applied texts:articles 222-9 and 222-15 of the penal code

Cour de cassation
criminal chamber
Public hearing of Tuesday January 10, 2006
Appeal number: 05-80787
Published in the bulletinRejection

M. Cotte, president
M. Blondet., Adviser rapporteur
M. Davenas., General counsel
Me Bouthors., Lawyer (s)

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS, delivered the following judgment:

Deciding on the appeal brought by:

– X … Christophe,

against the judgment of the COLMAR Court of Appeal, correctional chamber, dated January 4, 2005, which, for administration of harmful substances resulting in permanent disability, sentenced him to 6 years’ imprisonment with continued detention and pronounced on civil interests;

The COURT, ruling after debates in the public hearing of December 13, 2005 where were present: Mr. Cotte president, Mr. Blondet advisor rapporteur, MM. Farge, Le Corroller, Castagnède councilors of the chamber, Mmes Gailly, Guihal, M. Chaumont referendum advisers;

Advocate General: M. Davenas;

Chamber clerk: Mrs Krawiec;

On the report of the adviser BLONDET, the observations of Me BOUTHORS, lawyer in the Court, and the conclusions of the Advocate General DAVENAS; the applicant’s lawyer who spoke last;

Considering the brief produced;

On the single ground of appeal, based on the violation of articles 6, 7 and 8 of the European Convention on Human Rights, 111-4, 222-9 and 222-15, paragraph 1, of the Penal Code, 591 and 593 of the Code of Criminal Procedure;

“in that the contested confirmatory judgment condemned the applicant for the head of administration of harmful substances followed by mutilation or permanent infirmity and ruled on civil interests;

“on the grounds that the defendant has his lawyer develop conclusions filed with the Court today under the terms of which he asks the civil court to pronounce his release, exposing, on the one hand, that the material element of the administration of the virus is not characterized insofar as there is no certainty about the administration of the virus by the accused to the civil parties, and on the other hand, that the moral element is lacking insofar as the fact to maintain an unprotected sexual relationship, without revealing his serological status, can only constitute a risk of administering viruses; that the defendant observes that the conclusions of the experts appointed by the investigating judge according to which sexual intercourse with the accused “constitute a plausible explanation for the HIV contamination of these two young women “are based only on the statements of those examined, no comparison of viral strains having been carried out or proposed by the experts, so that the Court is in the impossibility of being certain of the contamination of young women by the defendant; that it results from a careful reading of the elements of the procedure that Christophe X … learned of his own seropositivity in 1997, at the latest in 1998, and that it is constant and undisputed that he then multiplied female conquests, concomitantly maintaining several relationships; that it is still constant and undisputed that the accused had unprotected sexual relations with several young women on a significant period;that the information established with certainty that the accused never informed any of the 5 or 6 young girls with whom he had repeatedly had unprotected sex because he was a carrier of the HIV virus, then even due to the fact that hisAIDS had reached the stage of proven illness, a condition that one of her companions had witnessed on her own; that it is finally undisputed that Miss Y … and Z …, informed in particular by Céline A … of the AIDS of which Christophe X was reached …, submitted to the test the results of which were positive for them, the other young women having obtained a negative result in the same test; that, before the Court, the defendant who declares “not to have wanted that”, resumes his previous explanations according to which he deliberately suppressed his seropositivity for fear of being rejected; that, however, the defendant, whose infection had reached the AIDS stage by the end of September 2000 declared, continued his practices of unprotected sex with multiple partners that he never informed of his HIV status, which would obviously have allowed them to take all measures to protect them from contamination to HIV; it is common ground that two of them were contaminated as a result of these practices which the accused could not ignore the obvious risks of contamination by an incurable disease;

that he has knowingly killed his seropositivity with his multiple companions, thus making them run an extremely serious risk for their health and their lives, it being observed that the file contains evidence allowing him to retain his lack of consideration for the young women he frequented, not hesitating to simultaneously maintain multiple relationships under the aforementioned conditions; that the fear of being rejected, put forward by the defendant to explain the voluntary concealment of his seropositivity, comes up against the statements given by his companions, who planned to make their life with the defendant, to become engaged to him and to have a child by him; that, despite the knowledge that he had his HIV infection and its inevitable consequences on such projects, the defendant did not hesitate to encourage these projects on the part of his companions, and that he even alleged an alleged personal allergy to latex to avoid having to maintain safe sex; that the Court can therefore only note, as the trial judge did exactly, that the offense of administering a substance liable to be harmful to health is indeed constituted in all its elements at the ‘against the accused, whose guilt will therefore be confirmed; whereas it should be observed, for the sake of completeness, on the one hand, that

“1) whereas, on the one hand, a romantic relationship which a partner maintains that it was contaminating does not fall within the scope of the criminalization of the administration of harmful substances having harmed physical integrity or psychic of others;

“2) whereas, on the other hand, exposure to a risk, even if it is unilateral, is not an act of administering a harmful substance because of the hazard inherent in the concept of risk;

“3) whereas, on the third hand, the causal link between the attack on the person and the administration of a harmful substance attributable to a specific person must be certain; that the contradictory and ineffective statements of the judgment on the nature of this causal link reverse the burden of proof in violation of the principle of the presumption of innocence;

“4) while, on the fourth part, the intentional element specific to the offense provided for by article 222-15 of the Penal Code includes the deliberate and considered will to directly harm the person and cannot be legally inferred from a behavior deemed reckless or negligent “;

Whereas it follows from the judgment under appeal and from the procedural documents that Aurore Z … and Isabelle Y … lodged a complaint on February 6, 2001 against Christophe X …, accusing him of deliberately having them spread the human immunodeficiency virus (HIV) during unprotected sex; that after the information open on the facts denounced, Christophe X … was referred to the criminal court under the prevention of the offense of administration of harmful substances aggravated by the permanent infirmity of the victims;

Whereas, in order to find him guilty of this offense and to condemn him to compensate the damage of the civil parties, the judgment holds that, knowing since 1998 that he was a carrier of HIV, the defendant multiplied unprotected sexual relations with several young people women from whom he voluntarily concealed his state of health, and thus sexually infected the two complainants, now carriers of a viral disease constituting permanent disability;

Whereas in the state of these statements, free from insufficiency or contradiction, the Court of Appeal characterized in all its elements, both material and intentional, the offense provided for and punished by articles 222-15 and 222 -9 of the Penal Code;

From which it follows that the plea must be rejected;

And whereas the stop is regular in form;

DISMISSES the appeal;

Thus done and judged by the Court of Cassation, criminal chamber, and pronounced by the president on January ten, two thousand and six;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

Publication: Criminal Bulletin 2006 N ° 11 p. 37

Contested decision: Colmar Court of Appeal, of January 4, 2005

Titrations and summaries: INFRINGEMENT OF THE PHYSICAL OR PSYCHICAL INTEGRITY OF THE PERSON – Intentional attack on the integrity of the person – Administration to others of substances harmful to health – Constituent elements – Knowing transmission of the immuno virus -human deficiency through the sexual route.Justifies its decision the court of appeal which, to find the defendant guilty of the offense of aggravated administration of harmful substances provided for and punished by articles 222-15 and 222-9 of the Penal Code, retains that, knowing that he is carrying the virus of human immunodeficiency (HIV), he multiplied unprotected sex with several young women to whom he concealed his state of health and infected two of them, now carriers of a viral disease constituting a permanent disability.