Overview
There are currently no HIV-specific criminal laws in Chile, however a proposal has been made in Parliament to introduce a provision to this effect. There are certain general provisions in the Criminal Code which have the potential to criminalise people living with HIV, though their exact applicability is not clear.
Article 316 of the Criminal Code makes it an offence to disseminate “pathogenic germs” with the aim of producing a disease, punishable by imprisonment and a fine. Article 317 provides for sentence enhancements for this offence in cases where death or serious illness is caused, including through recklessness and negligence. It is not clear whether this offence could apply to HIV ‘exposure’ or transmission.
Articles 318 and 318bis criminalise failures to follow guidance issued by a health authority in times of epidemic, pandemic or contagion, with a penalty of imprisonment and a fine.
Articles 397 and 398 contain offences relating to causing serious harm. They do not specifically mention HIV or other diseases. However, in 2018 it was reported that a Deputy of the Chilean Parliament had proposed an amendment to the Criminal Code to introduce a new Article 398bis that would specifically criminalise the transmission of HIV, with a penalty of imprisonment.
The proposed law would set a relatively high threshold for conviction; it would require the offender to know they have HIV, intend to transmit it, engage in behaviour which poses a risk of transmission, and actually transmit it. As of September 2020, the bill has not been passed.
To date, there have been no reports of prosecutions for HIV transmission under the Criminal Code. In 2019 there was a civil case brought against a doctor who was accused of intentionally transmitting HIV to his partner. In the case the plaintiff had found messages on his partner’s phone in which he boasted of intentionally transmitting HIV to others. The plaintiff, who did not know his partner was living with HIV, subsequently discovered he was HIV-positive. He brought a case for damages before the Second Civil Court of Viña del Mar in February 2019. The resolution of this case is not known.
