The criminal law of Oaxaca prohibits perceived ‘exposure’ as well as actual transmission.
Under Article 192, anyone who knows they are living with a venereal or easily transmissible disease and who through sex or any other means “endangers the health” of another, is liable to imprisonment for six months to three years and a fine of three hundred to three thousand pesos, as well as compulsory treatment.
Knowledge of the illness is presumed where there are external injuries or manifestations of the disease.
The prosecution can only take place following individual complaint in the case of partners.
Article 193 criminalises anyone who intentionally spreads a disease with a penalty of one to six years. Similarly, Article 275 imposes a penalty of six to nine years’ imprisonment on anyone who causes an injury which results in an incurable illness.
Article 300 lays out the circumstances in which injuries are caused with premeditation, which carries greater sentences. This is presumed where the injury is caused by venereal contagion.
Código Penal para el Estado Libre y Soberano de Oaxaca, (Oaxaca: LXIV Legislatura del Estado, 2020)
CHAPTER II. Contagion and spread of diseases.
Anyone who, knowing that he is ill with syphilis or a venereal disease in an infectious period or with any easily transmissible disease, has intercourse with a person or by any other direct means endangers their health, will be sentenced to imprisonment from six months to three years and a fine of three hundred to three thousand pesos, without prejudice to the corresponding penalty if contagion is caused, and will be subjected to adequate treatment for the ailment that he suffers. In the case of the spouse, it can only proceed by complaint of the offended. Knowledge of the disease is presumed when the agent presents injuries or external manifestations of the disease are easily noticeable.
Prison from one to six years will be imposed: I.- Anyone who intentionally spreads any other disease regardless of the means used;
From six to nine years’ imprisonment shall be imposed on the person who infers an injury resulting in a certain serious or probably incurable disease; the complete disablement or loss of an eye, an arm, a hand, a leg or a foot, or any other organ; when any organic function is forever impaired or when the offended person remains deaf, impotent or with an incorrigible deformity.
There is premeditation: whenever the offender intentionally causes an injury, after having reflected on the crime he is going to commit. Premeditation will be presumed; when the injuries or homicide are committed by flood, fire, mines, bombs or explosives; by means of poisons or any other substance that is harmful to health, venereal contagion, suffocation or enervates or by retribution given or promised; by torment, depraved motives, or brutal ferocity.
Our thanks to la Red Mexicana de Organizaciones contra la criminalización del VIH for their research assistance to confirm current relevant legislation.