Belarus uses Article 157 of its Criminal Code to prosecute any condomless sex act by an HIV-positive individual who is aware of their status, except where they have disclosed this to their partner who has consented to the act which carry a ‘risk of infection’. Perceived ‘exposure’, non-disclosure, and transmission are subject to prosecution.
‘Knowing’ exposure is punished with a fine, detention or imprisonment of up to two years, while ‘careless’ or ‘indirectly intentional’ (i.e reckless) transmission can result in imprisonment of up to 5 years. This increases to 5 to 10 years if more than two individuals or a minor acquire HIV as a result. It is not necessary for the partner to file a criminal complaint under this provision; confirmation of sexual activity or transmission is enough, meaning proceedings can be, and often have been, initiated by healthcare professionals.
In December 2018, following sustained advocacy from local and regional organisations, part of Article 157 of the Criminal Code was amended. This amendment reduced the sentences available and removed individuals from criminal liability if they had previously disclosed their HIV status to their partner, as long as their partner had agreed to any acts that might have led to HIV transmission. This amendment also made it possible to retrospectively review the prison sentences of people who had previously been convicted despite their HIV-negative partner consenting to condomless sex.
In December 2020, the government announced it was formally considering repealing Articles 157 and 158 of the Criminal Code; a direct result of advocacy by the NGO People Plus, with support from the Belarusian Red Cross Society, UNAIDS and the WHO. Nevertheless, prosecutions continue to take place including as recently as 2021.
Until 2018, when the law was modernised, a large number of cases related to the prosecution of the HIV-positive partner in couples of different HIV status even when the HIV-negative partner was aware of their partner’s HIV-positive status. In some cases, despite the HIV-negative partner not wishing to prosecute and/or when protective measures were taken, charges were bought by the State against the will of the negative partner. This acted as a deterrent to care and treatment access as people did not want to register with care providers and risk prosecution.
According to Internal Affairs data, since 2001, at least 426 people have been convicted under Article 157. The first prosecution recorded by HJN was in 2001. We do not know if this was the first case in the country as the law was enacted in 1999. As of our Advancing HIV Justice 3 report (2019), Belarus had the highest rate of criminal cases per diagnosed HIV cases anywhere in the world. However, recent statistics have suggested that the number of cases has fallen markedly following the 2018 amendment; there were 130 and 133 criminal cases in 2017 and 2018 respectively, followed by 71 in 2019 (the amendment came into force in July 2019), and 37 and 38 in 2020 and 2021. It was reported by the Belarus Investigative Committee that 34 criminal cases were opened in 2021 related to HIV infection.
A significant proportion of those convicted are women (61% in 2019-2021). Recently, in January 2021, a woman was sentenced to eight years’ imprisonment under Parts 1 and 3 of Article 157 for alleged HIV transmission and perceived ‘exposure’.
Criminal Code of the Republic of Belarus July 9, 1999 No. 275-Z
Article 157. Infection with human immunodeficiency virus
- Knowingly placing another person at risk of contracting the human immunodeficiency virus (HIV) –
is punishable by a fine or arrest or imprisonment for up to two years.
- Infection of another person by the carelessness or indirect intent of HIV by a person who knew he or she had the disease –
is punishable by up to five years’ imprisonment.
- The action provided for in paragraph 2 of the present article, committed against two or more persons, either knowingly or with the direct intent of a minor –
is punishable by five to ten years’ imprisonment.
Note. A person who has committed the acts referred to in paragraphs 1 or 2 of this article shall be exempt from criminal liability if another person who has been put at risk of infection or infected with HIV has been timely warned about the presence of this disease in the first person and has voluntarily agreed to perform acts that have created a risk of infection.
Article 166. Rape .
Part 3. Rape of a known minor or rape resulting in death by negligence, or grievous bodily harm, or HIV infection or other serious consequences – Part 3.
is punishable by eight to fifteen years’ imprisonment.
Article 167. Violent acts of a sexual nature
Part 3. The acts referred to in paragraphs 1 or 2 of this article, committed in respect of a person known to be a minor (young child), or resulting in the death of the victim (or victim) by negligence, or grievous bodily harm, or exposure to HIV or other serious consequences, -are punishable by eight to fifteen years’ imprisonment.
Authors: Eurasian Women’s Network on AIDS (EWNA)
Regional HIV criminalisation report that summarises the state of play regarding HIV criminalisation laws and known prosecutions in the EECA region.