Although Malaysia does not have any provisions explicitly criminalising HIV transmission, ‘exposure’, or non-disclosure, the Penal Code contains both general disease provisions and sentence enhancements which can be applied to people living with HIV.
Sections 269 and 270 criminalise negligent and malignant acts, respectively, which are likely to ‘spread the infection of any disease dangerous to life’. The diseases included are not stipulated, but are likely to include HIV. The penalties available include up to six months and up to two years’ imprisonment, with or without a fine, respectively.
The Penal Code also includes a sentence enhancement for the offence of rape where committed by someone living with HIV (or any other sexually transmitted disease). The sentence is increased to between 10 and 30 years with whipping. There is no requirement for transmission for this enhancement to be imposed, mere ‘exposure’ is sufficient.
There have been no known HIV criminalisation cases in Malaysia to date.
Penal Code 1936
Section 269. Negligent act likely to spread infection of any disease dangerous to life
Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to six months or with fine or with both.
Section 270. Malignant act likely to spread infection of disease dangerous to life
Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
Penal Code 1936
Section 376. Punishment for rape
(2) Whoever commits rape on a woman under any of the following circumstances:
(i) when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman;
shall be punished with imprisonment for a term of not less than *ten years and not more than thirty years and shall also be punished with whipping.
This report identifies the current status of policy and legal environment in Malaysia that safeguard the universal human rights of the key affected populations with regard to the HIV prevention, care and treatment. The review and consultation establishes a baseline on the current enabling environment (policies and laws) in relation to safeguarding the human rights of the key populations and second, and it provides a set of recommendations to input into any reforms to promote an enabling environment where the human rights of the key populations are protected.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.