Mexico is a republic consisting of 32 jurisdictions. There is both a federal law and individual state laws, each with their own criminal provisions.
The federal law and almost all states, with the exception of Aguascalientes and San Luis Potosí, maintain provisions which have the potential to criminalise those living with HIV, predominately through the criminalisation of perceived ‘exposure’ to diseases. The most common formulations of this type found within Mexican criminal codes are perceived ‘danger of contagion’ and ‘endangering the health of another’.
Only two of these criminalising states, Coahuila and Tamaulipas, make explicit mention of HIV/AIDS within the relevant provisions. The remainder criminalise perceived ‘exposure’ to diseases generally, most frequently referencing ‘venereal diseases’, ‘serious illnesses’, or ‘serious transmissible diseases’.
Additionally, several states criminalise the actual transmission of diseases, which invariably carries more severe penalties.
The provisions within some states stipulate that the victim must be unaware that the accused is living with a disease, which effectively criminalises non-disclosure in these jurisdictions.
The severity of penalties imposed for these offences varies widely from state to state, but most frequently include prison sentences and fines. In some states compulsory medical treatment may be imposed, or the accused may be required to pay for the complainant’s medical costs.
In many states the law sets out enhanced sentences where the disease in question is considered incurable, which could result in long prison sentences for people living with HIV who are accused of having sexual intercourse or committing other acts which carry a perceived risk of ‘exposure’.
As well as specific provisions criminalising perceived ‘exposure’ and transmission, several states consider the general offences of infliction of injury or harm aggravated or premeditated where caused by the transmission of a disease.
Despite the prevalence of criminal laws which could be used to penalise those living with HIV, information on prosecutions is scarce. A 2017 report by the Mexican Network Against the Criminalisation of HIV suggested that there had been 39 criminal cases under these provisions; fifteen in Veracruz, nine in Sonora, five in Tamaulipas, five in Estado de México, three in Chihuahua, one in Ciudad de México and one more in Nuevo León. However, the circumstances and outcomes of these cases is not clear.
In December 2020 a case involving the alleged transmission of HIV became public. In the case a man who had worked as an escort filed a lawsuit against one of his clients, a singer, who he accused of transmitting HIV to him. The complainant alleges that he had sex with the singer with a condom several times before being convinced to have unprotected sex. He subsequently tested positive for HIV. This case is ongoing and the outcome is not yet known.
The Mexican federal criminal law penalises perceived ‘exposure’ and injuries caused by transmission of diseases.
Article 199bis of the Federal Penal Code states that anyone who knows they have a venereal disease or other serious illness, and who puts another at perceived ‘danger of contagion’ through sexual intercourse or other means, is liable for imprisonment from three days to three years, and a fine of up to forty days. Where the disease is incurable, the penalty is increased to six months to five years’ imprisonment.
In the case of partners, prosecution can only proceed following their complaint.
In January 2021, a deputy of the Citizen Movement proposed to add a fourth paragraph to Article 199bis which would explicitly criminalise the act of ‘stealthing’, that is non-consensual condom removal, which results in the transmission of a venereal disease or pregnancy. The proposal would see these acts punished with three to eight years’ imprisonment and a fine of 80 days. To date this proposed amendment has not been enacted.
Additionally, Article 315 states that the infliction of injuries and homicide will be considered premeditated, that is intentional and with prior consideration, where this is the result of “venereal contagion”.
More information is available on the following states
Código penal federal - Última reforma publicada DOF 01-07-2020
Chapter II – Danger of contagion
Article 199 Bis – Anyone who, knowing that he or she is ill with a venereal disease or another serious illness in an infectious period, puts the health of another in danger of contagion, through sexual intercourse or other transmissible means, will be punished from three days to three years in prison and up to forty days fine.
If the illness suffered is incurable, the penalty of six months to five years in prison will be imposed.
In the case of spouses, concubines, it may only proceed by complaint of the offended.
CHAPTER III Common Rules around Injury and Homicide
It is understood that injuries and homicide are classified when they are committed with premeditation, with advantage, with treachery or treachery.
There is premeditation: whenever the offender intentionally causes an injury, after having reflected on the crime he is about to commit.
Premeditation will be presumed when injuries or homicide are committed by flooding, fire, mines, bombs or explosives; by means of poisons or any other substance harmful to health, venereal contagion, suffocation or enervating or for retribution given or promised; for torment, for depraved reasons or brutal ferocity.
Document in Spanish: Ante los hechos, el 16 de febrero de 2016, la Comisión Nacional de Derechos Humanos (CNDH), respondió a la petición del Grupo Multisectorial en VIH/sida e ITS del estado de Veracruz y otras organizaciones de la sociedad civil, e interpuso una acción de inconstitucionalidad en contra de la reforma en la Suprema Corte de Justicia de la Nación.
Como resultado de la promoción de la Acción de Inconstitucionalidad, el pleno de la Suprema Corte de Justicia de la Nación determinó que la modificación al artículo 158 del Código Penal del Estado de Veracruz era inconstitucional por lo que tenía que ser derogada.
Author: Suprema Corte de Justicia de la Nación
Our thanks to la Red Mexicana de Organizaciones contra la criminalización del VIH for their research assistance to confirm current relevant legislation.