No accident: HIV infection during unprotected consensual sex
Published: Friday, Jun 7th 2024, 12:20
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HIV infection during unprotected consensual sex does not constitute an accident, even if the infected person was unaware of the other person's infection. This was decided by the Federal Supreme Court in the case of a woman. She was infected by her long-term partner, who was therefore convicted under criminal law for grievous bodily harm.
In this particular case, the partner had not told his girlfriend that he was HIV-positive. The accident insurance company denied any obligation to pay benefits in 2021. It argued that there was no accident in the legal sense. The Cantonal Court of the Canton of Basel-Landschaft dismissed an appeal by the woman against this decision.
In its leading judgment published on Friday, the Federal Supreme Court also does not assume an accident. According to the law, an accident is deemed to have occurred if there is a sudden, unintended harmful effect of an unusual event on the human body.
If one of the criteria is not met, the impairment of health caused by an event can at best be considered an illness, which means that health insurance is responsible.
Typical transmission
In the present case, there is no unusual external factor. Damage to health as a result of an infection is a disease if the pathogen enters the body in a typical way.
The infection had occurred through unprotected sexual intercourse with the partner and thus in a manner typical for the transmission of the HI virus. According to the Federal Supreme Court, the fact that the woman did not know about her partner's infection does not change this, nor does the criminal conviction.
In the past, the Federal Supreme Court assumed that there was an unusual factor or atypical transmission of the pathogen if someone contracted the HI virus by reaching into a syringe. A Lyme disease infection following a tick bite is also considered an accident. (Judgment 8C_348/2023 of 3.5.2024)
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