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 January 2021.
Belarus uses article 157, an HIV criminalisation provision within the country’s Criminal Code to prosecute any condomless sex act by an HIV-positive individual who is aware of their status. Both exposure and transmission are subject to prosecution. People also have a duty to disclose under the law as well as a duty not to put another at risk.
“Knowing” exposure is punished with a fine, detention or imprisonment of up to three years, while “careless” or “indirectly intentional” (i.e reckless) transmission can result in imprisonment of 2-7 years. This increases to up to 13 years if more than two individuals or a child acquires HIV as a result. Condomless sex that does not result in HIV transmission is punishable by up to two years in prison.
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, usually initiated by health care workers. This acted as a deterrent to care and treatment access as people did not want to register with care providers and risk prosecution.
In December 2018, following sustained advocacy from local and regional organisations, part of article 157 of the Criminal Code was amended. This amendment 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.
According to Internal Affairs data, since 2001, 426 people have been convicted under article 157 of the criminal law. 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.
Between the 1st August 2019 (when the 2018 amendment came into effect) and the 31st October 2019, HJN is aware of nine prosecutions.
More 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) – 1.
is punishable by a fine or arrest or imprisonment for up to three 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 two to seven 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 thirteen 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.