The criminal law of Ciudad de México penalises perceived ‘exposure’.
Article 159 of the Penal Code states that anyone who knows they are living with a serious disease, and who “endangers the health of another” through sexual or other means, provided that the victim is not aware of this condition, is guilty of an offence.
The penalty under this law is three months to three years’ imprisonment and a fine of fifty to three hundred days, or three months to ten years’ imprisonment and a fine of five hundred to two thousand days where the disease is incurable.
The offence is prosecuted by means of individual complaint.
The 2017 report by the Mexican Network Against the Criminalisation of HIV suggested that there had been one HIV criminal case in Ciudad de México at the time.
In a second case in June 2021, a 32-year-old man was arrested for allegedly failing to disclose that he was HIV positive to his partner, who found HIV medication in his house. The man was charged under the ‘danger of contagion’ provision of the Mexico City Penal Code (Article 159) for perceived ‘exposure’. It does not appear that HIV was transmitted, though this is not required for this offence.
In October 2021, upon reviewing the above case a court held article 159 to be unconstitutional on the basis that it violates the constitutional principles of ‘suitability and proportionality’. In November 2021, two deputies brought forward a bill to repeal this law.
Código Penal para la Ciudad de México - Última reforma publicada en la Gaceta Oficial de la Ciudad de México, el 31 de diciembre de 2018
CHAPTER II DANGER OF CONTAGION
Article 159 – Anyone who, knowing that he is suffering from a serious disease during the infectious period, endangers the health of another person through sexual relations or other transmissible means, provided that the victim is not aware of this circumstance, shall be imprisoned for three months to three years and fined from fifty to three hundred days. If the disease suffered is incurable, a prison sentence of three months to ten years and a fine of five hundred to two thousand days will be imposed. This offence will be prosecuted by means of a complaint by the victim or offended party.
CHAPTER II PUNISHABILITY OF CULPABLE OFFENCES (AMENDED FIRST PARAGRAPH, G.O. 9 JUNE 2006)
ARTICLE 76 (Punishability of wrongful crime). In the case of culpable offences, one quarter of the penalties and security measures assigned by law to the basic type of fraudulent offence shall be imposed, with the exception of those for which the law provides for a specific penalty or a different treatment regulated by a legal system other than this Code. In addition, where appropriate, suspension or definitive deprivation of rights to exercise a profession, trade, authorisation, licence or permit shall be imposed for a term equal to the prison sentence imposed. Whenever an alternative sanction including a non-custodial sentence corresponds to the fraudulent offence, the person responsible for the offence shall take advantage of this situation.
(REFORMED, G.O. 08 OCTOBER 2014) Only the following shall be punished as culpable offences: …. Injuries due to contagion, referred to in Article 159
Our thanks to la Red Mexicana de Organizaciones contra la criminalización del VIH for their research assistance to confirm current relevant legislation.