South America

Bolivia enacted an HIV-specific law in 2007 that places a legal obligation on people who are aware they are living with HIV “to be responsible in their sexual behaviour, to inform their sexual partners of their HIV status, to inform health personnel treating them of their HIV status, and to comply with health and epidemiological protocols.”¹ There is no information on the penalty for non-compliance, nor are there data on the number of prosecutions or convictions.

Brazil’s first prosecution for criminal HIV transmission took place in 2004. A man was found guilty of attempted murder for not disclosing his HIV-positive status to his mistress, who subsequently tested HIV-positive. The man’s wife of 25 years was not a complainant. He was sentenced to eight years in prison. The verdict and sentence was upheld on appeal, but a second appeal based on a legal technicality resulted in a second trial. This time he was found guilty of the lesser charge of assault and sentenced to two and half years - time he had already served.

A second case, currently before the courts, involves a man who has also been charged with attempted murder for having unprotected sex with three women without disclosing his HIV-positive status, of whom two have subsequently tested HIV-positive.

Brazil’s Ministry of Health issued a statement in November 2009 recommending that such prosecutions cease, and noting that in order for HIV transmission to be considered a crime the court must, in addition to proving intent, consider the existence of psychosocial factors; consider the impact of treatment on infectiousness of the accused; and consider the responsibility of the complainant to protect themselves. (See www.criminalhivtransmission.blogspot.com.)

Since 1997, the law in Colombia has placed a legal obligation on people who are aware they are living with HIV to disclose to people who "may be at risk of infection", including a sexual partner or healthcare workers. In 2000, legislators passed an HIV-specific law that criminalises anyone who has been diagnosed HIV-positive who “makes practices by which he can contaminate another person”. This is broad enough to prosecute HIV exposure as well as transmission, and possibly even mother-to-child transmission. The maximum sentence is eight years’ imprisonment. There are no data on the number of prosecutions or convictions.

Article 11 of Ecuador's Law for HIV/AIDS Prevention and Integrated Assistance, enacted in 2000, includes a provision that makes a diagnosed HIV-positive individual who "consciously and voluntarily" transmits HIV "legally responsible for damage caused". There are no data on the number of prosecutions or convictions.

Paraguay passed an HIV-specific law in 1991 which states that “HIV carriers who deliberately attempt to transmit disease to others shall be subject to criminal penalties”. No further definitions are provided and there are no data on the number of prosecutions or convictions.

Suriname added HIV to its sexually transmitted lnfections law in 2004, without widespread stakeholder consultation² and there have been at least three prosecutions for HIV transmission in the absence of disclosure, although no further details are known.

In 2004, Venezuela lawmakers proposed to criminalise people who know they are living with HIV, as well as those aware they are living with viral hepatitis, or other sexually transmitted infections, and who commit “crimes against public health and social security.”³ The proposed penalty for HIV included up to eight years in prison, compared to three years for hepatitis C. It is unclear if the law passed, and there are no data regarding prosecutions or convictions.