Overview
Ecuador maintains both an HIV-specific statute and general criminal provisions which may be used to punish those living with HIV. However, we are not aware of any HIV cases in Ecuador to date.
Law No. 2000-11, The National Congress Law for the Prevention and Assistance of HIV/AIDS, outlines specific measures regulating those living with HIV. As well as including protections for people living with HIV, it also outlines some punitive measures.
Article 11 states that any person who knows they have HIV and who ‘in a conscious and voluntarily way’ transmits HIV to another person shall be criminally liable for the damage caused. The exact penalty available is not known, and we are not aware of any prosecutions under this provision.
Article 10 of this law states that anyone who has been infected with HIV/AIDS through the negligence of someone who has ‘attended to him or her (sic)’ may bring a legal action against that person.
Additionally, the Penal Code contains provisions which may be relevant for those living with HIV. Article 152 defines the offence of injury as including acts resulting in a ‘serious and incurable communicable disease’, which are liable for imprisonment for five to seven years.
Furthermore, Article 48 contains a number of aggravating circumstances for offences against ‘sexual and reproductive integrity, integrity and personal freedom’. One such circumstance is where the victim contracts a ‘serious, incurable or fatal disease’. This might be applied in cases of sexual assault which result in HIV transmission, for instance.
In previous versions of the Penal Code there was seemingly a provision (Article 432) which criminalised anyone who consciously spread a ‘dangerous or contagious disease’ with a penalty of one to five years’ imprisonment and a fine. However, it appears this provision has been superseded by the articles listed above.
As such, the Penal Code no longer explicitly criminalises intentional transmission of HIV or other STIs, however, in February 2024 it was reported that a proposal to reintroduce such a provision to the Penal Code was made by Assembly members. While the provision is ostensibly aimed at preventing intentional transmission of STIs including HIV, the text reveals that merely engaging in sexual intercourse without disclosing health status would be sufficient for prosecution. Similarly, the donation of blood, semen, breast milk, organs or other tissues, as well as sharing needles would be criminalised under the proposed amendment, with a penalty of one to three years’ imprisonment. The bill is being actively opposed by Ecuadorian civil society organisations, which highlight that proposed law would violate Article 11 of the Constitution which includes a protection against discrimination for those living with HIV.
Laws
Law No. 2000-11, The National Congress Law for the Prevention and Assistance of HIV/AIDS
Article 10.- The person who has been infected with HIV / AIDS due to the negligence of the person can sue by legal means the natural or legal person responsible for said act and, in accordance with the provision of article 20 of the Constitution Republic Policy, if the negligent event had occurred in a State welfare house.
Article 11.- The person who knowing that he / she is an HIV / AIDS carrier, because he has been notified and informed, in a conscious and voluntary way transmits HIV to another person, with knowledge of cause, will be liable to the law for the damage caused.
Article 12.- Legal offices will be established in the main cities of the country dependents of the Ombudsman’s Office or the Prosecutor’s Office, to legally attend to people affected with HIV / AIDS, or family members who are victims of discrimination whose rights have been violated by this cause.
Article 13.- The indemnities, in the cases in which these proceed, will be calculated in minimum vital wages of the worker in general according to income perceived, by the person affected with HIV / AIDS, before the decrease in their work capacity would have prevented him from working.
Penal Code
Article 48.– Aggravating circumstances in offences against sexual and reproductive integrity, integrity and personal freedom: For offences against sexual and reproductive integrity, integrity and personal freedom, in addition to those provided for in the previous article, the following are specific aggravating circumstances:
(…)
3. Having infected the victim with a serious, incurable or mortal illness.
Article 152.- Injuries: Any person who injures another person shall be sanctioned in accordance with the following rules:
(…)
5. If it causes the victim to become mentally deranged, to lose the ability to speak, to be unable to work, to become permanently disabled, to lose or render useless any organ or to suffer from a serious, incurable communicable disease, it shall be punishable by imprisonment for five to seven years.
(…)
Injury caused by infringement of an objective duty of care, in any of the above cases, shall be punishable by a quarter of the minimum penalty provided for in each case.
In determining the infringement of the objective duty of care, the provisions of Article 146 shall be considered.
Injuries derived from therapeutic actions carried out by health professionals in compliance with the principle of necessity that protects the patient’s health shall not be punishable.
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.
