The criminal law of Chiapas penalises both actual transmission of diseases and perceived ‘exposure’.
Article 444 of the Penal Code criminalises anyone who knows they carry an easily transmissible disease and intentionally and deliberately infects another person, or commits sexual or other acts “endangering the health of that person”, provided the victim has no knowledge of the disease.
The penalty for this offence is up to five years’ imprisonment and a fine of thirty days’ wages, as well as mandatory medical treatment. The penalty is raised to four to eight years’ imprisonment where the disease is incurable.
This provision states that the penalties are imposed even where the accused had no direct intention of infecting another person, provided that they are aware of their condition and the “danger of infection”. Knowledge of the disease is presumed where the person is undergoing medical treatment or where perceptible lesions or external manifestations of the disease have developed.
Where the accused is not aware of their status or of the ways that the disease is transmitted, has disclosed their status, or has taken the measures necessary to avoid transmission, their conduct will not be considered intentional and deliberate and they will not be liable under this provision.
The offence is prosecuted by means of individual complaint.
Código Penal para el Estado de Chiapas,
Article 444 – Anyone who, knowing that he or she is suffering from a disease that is easily transmissible but curable, intentionally and deliberately infects in order to provoke infection, has sexual relations with a person or by any other direct means, endangering the health of that person, provided that the victim has no knowledge of the disease, shall be imprisoned for up to five years and fined up to thirty days’ wages, without prejudice to the corresponding penalty if he or she causes the infection; He shall also be subject to the corresponding medical treatment, but if the disease transmitted is incurable, the penalty shall be four to eight years’ imprisonment. The conduct of an active person is not considered intentional and deliberate when the person is not aware to be suffering from the contagious disease, is not aware of the ways in which the disease is transmitted, has made known the risk of the disease that he/she is suffering from or has taken the necessary measures to avoid contagion. This offence shall be prosecuted by means of a complaint by the victim. The penalties established in this Article shall be applied even when the active subject has not had the direct and immediate intention of infecting any person, provided that he was aware of his illness and of the danger of infection. Knowledge of the disease is presumed when the active subject presents easily perceptible lesions or external manifestations caused by the disease or when, being aware of his condition, he is being medically treated.
“El criminalizar las condiciones, comportamientos y prácticas que predominan en la transmisión del VIH, a través de leyes o actos en prejuicio de grupos en situación de vulnerabilidad induce a una discriminación arbitraria por razón del VIH, provocando un impacto social y una violación a los derechos fundamentales. Esta discriminación arbitraria produce miedo e intolerancia y exacerba las formas de marginación e incrementa la vulnerabilidad a la infección por VIH.
En este sentido se hace un análisis sobre ¿cuáles son los elementos de discriminación arbitraria contenidos en la reforma al artículo 444 del Código Penal del Estado de Chiapas en las áreas de justicias y asistencia sanitaria? y ¿cuáles son los potenciales efectos sobre los derechos humanos de las personas con VIH?.” Biblioteca Digital de Vanguardia para la Investigación en Ciencias Sociales
Author: Jessica Salas Martinez
Our thanks to la Red Mexicana de Organizaciones contra la criminalización del VIH for their research assistance to confirm current relevant legislation.