The Penal Code of Brazil includes two general provisions criminalising the spread of venereal diseases and serious illnesses, the latter of which has been used against people living with HIV, along with general bodily harm laws including aggravated homicide. There have been recent attempts to introduce provisions which specifically criminalise HIV transmission, but these attempts have been unsuccessful and there remain no HIV-specific laws.
Article 130 of the Penal Code criminalises perceived “exposure” to contagion of venereal diseases through sexual intercourse or acts where the person “knows or must know” that they carry the infection. The penalty under this provision is three months to one year’s imprisonment or a fine, or one to four years’ imprisonment and a fine where the accused intended to transmit the disease.
Article 131 prohibits a person from undertaking acts which are capable of transmitting a serious illness. The offence carries a penalty of imprisonment for one to four years and a fine.
Furthermore, Article 267 criminalises the causing of an “epidemic by spreading pathogenic germs”. It carries a penalty of ten to fifteen years’ imprisonment, and the sentence is doubled where death is caused. Article 268 makes it an offence to violate orders by health authorities which are aimed at preventing the spread of contagious diseases, with a penalty of one month to one year imprisonment and a fine, increased by one third if the offender is a public health official, doctor, pharmacist, dentist or nurse.
In April 2015 a bill was brought before Parliament that would amend Article 1 of Law No. 8072 of July 25, 1990, which covers heinous crimes, to include people who “transmit and infect consciously and deliberately others with the AIDS virus (sic)” alongside a list of crimes which includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death. The offence carries a penalty of two to eight years’ imprisonment and a fine.
The introduction of the bill followed a media panic spurred by a newspaper article published in February 2015 that suggested that some men were deliberately passing on HIV to unknowing partners, and further exacerbated in a sensationalised TV programme aired in March. In 2017, following significant pressure and advocacy work, the bill was eventually dropped and to date this amendment has not been made.
Despite the failure to pass a specific HIV provision, prosecutions continue under the general law. The first known prosecution of this kind took place in 1995 where a woman was sentenced under Article 131 to a year’s imprisonment after neglecting to inform her partners that she had HIV, despite testifying that she had always required the use of condoms.
Two high-profile cases in 2009 also stimulated calls for the introduction of specific laws criminalising HIV transmission, which were eventually rebuked by the Ministry of Health. Both cases involved heterosexual men having sexual intercourse with women without disclosing their HIV status. In the first, the accused was initially found guilty of attempted murder for transmitting HIV to his mistress without disclosing his status. Following an appeal the charge was lowered to assault and he was sentenced to two and a half years’ imprisonment. The second also led to a charge of attempted murder for a man who had sexual intercourse with three women without disclosing his status, two of whom subsequently tested positive for HIV. The outcome of this case is not known.
A number of other cases have occurred in more recent years. In 2018 a man was sentenced to seven years’ imprisonment under Brazil’s ‘very serious injury’ provision after having sex without a condom with at least two women and failing to inform them that he was HIV-positive. The man was allegedly intent on transmitting HIV to his partners. In 2021 his sentence was extended to thirteen years.
In 2019 two cases were publicised involving the death of women following an alleged failure by the accused to disclose his HIV status. In the first, police claim the man’s wife died after he transmitted HIV to her, and he omitted telling a further six women of his status. In the second, police charged a man with aggravated homicide and allege that he transmitted HIV to his partner with intent to kill her, and then prevented her from receiving treatment. In both cases it is claimed that the accused forged documents to hide his HIV status. In a further case in 2022, a man was sentenced to 12 years’ imprisonment for manslaughter after the death of his wife from complications from AIDS, after he allegedly failed to disclose his HIV status during their relationship.
In March 2022, a 38-year-old man was arrested and charged with ‘very serious harm’ after he was accused by a total of nine women of “deliberately infecting them with HIV”. The man was allegedly diagnosed with HIV in 2019, but did not disclose his status to them or use any protection. At least three of the women who filed complaints subsequently tested positive for HIV.
Cases such as these demonstrate that HIV criminalisation is possible under a range of laws in Brazil including provisions which prohibit the spread of diseases, as listed above, as well as general provisions which criminalise bodily harm.
Danger of venereal contagion
Art. 130 – Exposing someone, through sexual intercourse or any libidinous act, to the contagion of venereal disease, of which he knows or must know that he is contaminated:
Penalty – imprisonment, from three months to one year, or fine.
§ 1 – If it is the agent’s intention to transmit the disease:
Penalty – imprisonment, from one to four years, and fine.
§ 2 – Only proceed through representation.
Danger of contagion from serious illness
Art. 131 – To practice, with the purpose of transmitting to another serious illness that he is contaminated, an act capable of producing the contagion:
Penalty – imprisonment, from one to four years, and fine.
Art. 267 – To cause an epidemic by spreading pathogenic germs:
Penalty – imprisonment, from ten to fifteen years. (Wording given by Law 8,072, dated 7.25.1990)
§ 1 – If death results from the fact, the penalty is applied twice.
§ 2 – In the case of guilt, the penalty is imprisonment, from one to two years, or, if death results, from two to four years.
Infringement of preventive health measure
Article 268 – Infringing the determination of the public authorities, aimed at preventing the introduction or spread of a contagious disease:
Penalty – imprisonment, from one month to one year, and fine.
Sole paragraph – The penalty is increased by one third, if the agent is a public health worker or exercises the profession of doctor, pharmacist, dentist or nurse.
Document in Portuguese used to advise the offices of the Public Defender, Public Ministry, Judiciary and Legislative Power on the science of HIV transmission, especially through sexual intercourse. The document includes sections on U=U, selected cases of HIV criminalisation, brief study of criminalising bills, the 2021 UNDP report on HIV criminalisation, and technical notes from the Health Ministry and the Health Secretariat of São Paulo State on the criminalisation of HIV transmission.
Our thanks to Cláudio Pereira, lawyer (GIV, Group for life Incentive) & Prof Jorge Beloqui (IME-USP), member of GIV, ABIA and The National Network of PWHA (RNP+) for their research assistance to confirm current relevant legislation.