Bhutan does not have an HIV-specific law but section 410 of the Penal Code has been used to prosecute a person for alleged HIV transmission. The law states that a person is guilty of criminal nuisance, if they knowingly or recklessly ‘create or maintain a condition’ that spreads a dangerous disease that injures or endangers the safety or health of the public. The offence carries a sentence of imprisonment of between one and three years. An intention to transmit HIV or to cause harm is not required. Issues of disclosure of HIV-positive status prior to sexual intercourse, and informed consent by the HIV-negative party are not addressed in the legislation. It is also unclear whether having a low viral load or use of risk reduction practices would preclude use of the law.
In July 2019, the first known HIV criminalisation case resulted in the conviction of a man for allegedly transmitting HIV to two women. The judgement stated the man had been diagnosed HIV-positive in 2017 and was on treatment but he had not disclosed his HIV status to either of the women. The court decided that the case involved aggravating circumstances and the offences were upgraded to a fourth-degree felony, with the judge giving a three-year custodial sentence. Only scant details of the case are available, and it is unknown whether any scientific evidence was considered by the court.
Another section of Bhutan’s Penal Code (section 160) covers the crime of reckless endangerment, where a person places another in danger of death or serious bodily injury. That offence includes a penalty of between one month and one year. In theory it may be applied in HIV cases but none have been reported.
Penal Code of Bhutan 2004
Section 410 Criminal nuisance
A defendant shall be guilty of the offence of criminal nuisance, if the defendant knowingly or recklessly creates or maintains a condition including spreading of dangerous disease that injures or endangers the safety or health of the public.
Section 411 Grading of criminal nuisance
The offence of criminal nuisance shall be a misdemeanour [sentence of imprisonment of between one and three years].
Section 160 Reckless Endangerment
A defendant shall be guilty of the offence of reckless endangerment, if the defendant’s reckless conduct including laying of sangda places another person in danger of death or serious bodily injury.
Section 161 Grading of reckless endangerment
The offence of reckless endangerment shall be a petty misdemeanour [sentence of imprisonment of between one month and one year].
In 2016, NACP in collaboration with the United Nations Development Programme (UNDP) undertook a Legal Environment Assessment (LEA) for the Kingdom of Bhutan to examine relevant laws and policies, and their implementation as they pertain to HIV. The LEA’s recommendations are supported by a Costed Action Plan (CAP) for their implementation.
Our thanks to the Australian law form Hall & Wilcox for their research assistance to confirm current relevant legislation.