The trial of the former singer of the girl group No Angels demonstrates how hard it is to prove if someone definitely infected another person with HIV. But the law cracks down on those who risk infecting others.
Benaissa was diagnosed with HIV when she was pregnant
Having unprotected sex with a partner who is not aware of his or her partner's HIV infection, is a criminal offense in Germany, but, medically, it is hard to trace the source of an infection.
A ruling in 1988, which forced those infected with HIV to declare their condition to sexual partners, is the current legal basis for the trial of the former singer of the girl group No Angels, Nadja Benaissa.
"At the moment, the law states that anyone who is infected must insist on using protection or inform his or her partner of the infection," Felix Damm, a lawyer specializing in media and copyright law, told Deutsche Welle.
"If he or she does not do that, they're committing a crime," he says.
Infecting someone with HIV during unprotected sex is a crime in Germany
The offense is classed as grievous bodily harm, or aggravated assault, because "an HIV infection is incurable and, when it leads to AIDS, is also lethal," said Damm. It carries a sentence of six months to 10 years.
It is been more than two decades since the first person was convicted based on the 1988 ruling, some of them because they deliberately infected sexual partners, others were convicted because they were simply careless.
In June 2007, for example, a 38-year-old man from the western city of Cologne was sentenced to eight years in prison for deliberately passing on the HI virus to four women. He even sent them text messages saying "Have fun with HIV".
The latest case was that of a decorator in the northern city of Kiel in June 2010, who was sentenced to five years in jail for infecting two women with HIV during unprotected sex.
It is often hard to determine the source of the infection
Medical tests tricky
It is not always easy, however, to prove who passed on the virus to a person.
"You can do certain tests to find out if two viruses from two individual people are closely related," Claudia Kuecherer from the Robert-Koch Institute told Deutsche Welle.
"But there's no absolute proof that would hold up in court. These so-called phylogenetic tests can't ascertain the direction of the infection," she explained.
Proof is even harder to obtain, the more time passes from the time of the infection. The virus mutates very quickly after the point of infection, making it harder to ascertain if it is related to the virus of the person who passed it on. As a result, medical tests are not the only evidence used to reach a verdict.
Over two decades have passed since the 1988 ruling and some believe it is time for a review of the law used in cases like that of Benaissa, based on the fact that, these days, people are much more aware of HIV and should therefore, be in a position to act responsibly.
"I think everyone should be responsible and take precautions, whether they have HIV or not" Damm told Deutsche Welle.
"And if we apply that principle of responsibility to our criminal law, then people who have HIV would not necessarily have to declare their infection and would therefore no longer commit an offense," he said.
Author: Zoran Arbutina/ng
Editor: Chuck Penfold