When sex takes an accidental turn

In spite of myself, I overheard a discussion in a café that stunned me: a young woman was explaining to her friend that she had discovered that her partner had hidden his HIV-positive status from her for more than three years, while continuing to have unprotected sex, and had passed this horrible infection on to her! She said she had reported it as an accident to her insurance company so that her treatment would cost less... M.

You are right to be surprised by this approach: it seems difficult to classify an HIV infection contracted during consensual sex as an accident covered by compulsory accident insurance.

Under Swiss law, an accident within the meaning of Article 4 of the Federal Act on the General Part of Social Insurance Law is defined as a sudden and involuntary harmful injury to the human body caused by an extraordinary external event that compromises physical, mental or psychological health or results in death. In the case you mention, it is the extraordinary nature of the external cause that is lacking. In fact, in the case of an infection such as HIV, case law has had occasion to specify that the simple fact that a partner has concealed his or her HIV-positive status is not sufficient to render the said cause 'extraordinary'.

According to our judges, unprotected sexual intercourse is a common act, even in ignorance of a hidden risk. Unlike rape, where coercion and violence make the external cause of damage to health extraordinary, consensual sex - although morally reprehensible on the part of the dishonest partner - remains legally ordinary for the purposes of accident cover. The Federal Court has confirmed that infection by a pathogenic agent during a consensual sexual act is not an unforeseeable event within the meaning of accident insurance, because the agent enters the body in a typical manner, without independent injury or trauma.

In the situation you describe, even if the ex-partner's behaviour is criminally reprehensible and punishable by a conviction for grievous bodily harm, this has no bearing on the analysis under social insurance law. The classification as an accident depends solely on how the virus entered the body.

In conclusion, the victim will have to turn to her health insurance to cover her medical expenses and not to accident insurance, unless she can prove another independent cause for her condition. However, criminal sanctions and a possible civil action against the ex-partner are still possible to obtain compensation for the damage suffered, particularly in terms of medical expenses. In this way, this poor woman could pass on the cost of her treatment to the perpetrator of this twisted stunt.