LA person who, knowing they are HIV positive, has unprotected sexual relations with an HIV negative partner incurs criminal liability. In the event of contamination, she faces ten years in prison and a fine of 150,000 euros. for “administration of a substance harmful to health resulting in permanent disability” (articles 225-15 and 222-9 of the penal code).
But what about his partner? On April 27, 2006, in a “opinion on the criminalization of sexual transmission of HIV” (human immunodeficiency virus), the National AIDS Council (CNS) recalled that the prevention policy restse on the “individual responsibility” : “If a person living with HIV has the responsibility not to transmit the virus, the uncontaminated person has the responsibility, during a new relationship, to protect themselves from HIV. »
Under these conditions, can the contaminated partner who did not require the wearing of a condom be accused, by the civil judge, of a fault which reduces his compensation? This is the question posed by the following case.
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In 2007, Mme 27-year-old They have unprotected sex.
A month later, Mme X presents the first symptoms of a primary HIV infection (fever and severe diarrhea) and must be hospitalized. She is then informed of their HIV status. She must follow antiretroviral treatment, which causes many side effects, including severe fatigue. In 2011, she was declared unfit for her job as a home helper.
Prescription
It was only that year that she filed a complaint against Mr. Y. She came up against the statute of limitations, then three years after the facts (it increased to six years with the entry into force of law no. 2017-242 of February 27, 2017). In 2016, she initiated civil action, the prescription for compensation for bodily injury being, according to article 2226 of the civil code, “ten years after the date of consolidation” (stabilization), which intervened for her in April 2015.
At first instance, Mr. Y is ordered to pay him 93,285 euros (professional impact, temporary functional deficit, suffering endured, permanent functional deficit). He must pay 398,821 to the primary health insurance fund (CPAM), for M’s current and future health expenses.me x.
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But he appeals, invoking the opinion of the CNS. He maintains that Mme X has “committed a mistake by not using condoms”and that this fault “is completely exonerated from liability”.
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