Overview
Ecuador maintains both HIV-specific laws and general criminal provisions which may be used to punish those living with HIV.
Law No. 2000-11, The National Congress Law for the Prevention and Assistance of HIV/AIDS, outlines specific measures regulating those living with HIV.
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.
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.
Aside from these punitive measures, the law also provides some protections; it prohibits discrimination against those living with HIV (Article 7), establishes legal offices to represent those who have been discriminated against (Article 12), and provides for indemnities to be paid to those who are affected in their ability to work (Article 13).
Additionally, the Penal Code contains relevant provisions for those living with HIV. Article 152 states that anyone who injures another resulting in a serious and incurable communicable disease is liable for imprisonment for five to seven years.
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 is infected with a serious, incurable or fatal disease.
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 However, it appears this provision has been superseded by the articles listed above.
There are no known cases of HIV criminalisation in Ecuador.
Laws
Law No. 2000-11, The National Congress Law for the Prevention and Assistance of HIV/AIDS
Art. 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.
Art. 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.
Art. 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.
Art. 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.
Código Orgánico Integral Penal
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:
1. If as a result of the injuries the victim suffers damage, illness or disability for four to eight days, he shall be sentenced to imprisonment for thirty to sixty days.
2. If it results in the victim being injured, disabled or ill for nine to thirty days, it shall be punishable by imprisonment for two months to one year.
3. If it causes the victim to suffer damage, disability or illness for thirty-one to ninety days, it shall be punishable by imprisonment for one to three years.
4. If it causes the victim a serious illness or a diminution of his physical or mental faculties or a disability or illness, which is not permanent, exceeding ninety days, he shall be sentenced to imprisonment for three to five years.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.
If the injury occurs during mass gatherings, tumult, popular commotion, sports event or public calamity, it shall be punished with the maximum of the prison sentence foreseen for each case, increased by one third.
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.