Overview
The criminal law of Trinidad and Tobago does not include a HIV-specific criminal statute, despite attempts to pass one in 2004. However, there are some offences in which the sentences imposed can be enhanced if the accused is living with HIV.
Section 34E of the Sexual Offences Act requires medical examination of any person convicted of an offence under sections 4 (rape), 9 (incest), and 12 (sexual intercourse with mentally subnormal person (sic)) of this Act, or sections 18 (sexual penetration of a child) and 19 (sexual touching of a child) of the Children Act 2012. Where the convicted person is found to be living with HIV or “any other communicable disease”, the victim will be informed and tested, and where it is found that they are also living with HIV or another disease, the Court may order the convicted person to pay damages to the victim, providing it is satisfied on the balance of probabilities that transmission occurred as a result of the offence. The provision states that the results of the medical examination of the convicted person should be confidential, other than disclosure to the victim.
Additionally, section 21 of the Trafficking in Persons Act 2011 allows for enhanced sentences for offences under sections 16 (trafficking in persons), 17 (inciting, organising or directing another person to traffic in persons), 18 (trafficking in children) or 19 (inciting, organising or directing another person to traffic in children) in a number of circumstances, including where the trafficked person was “exposed to a life-threatening illness”, which explicitly includes HIV/AIDS. This provision allows an additional term of fifteen years’ imprisonment to be imposed.
In 2004 there was an unsuccessful attempt to amend the Offences Against the Person Act to explicitly criminalise intentional or reckless HIV exposure. The proposed section 18A would have criminalised a person who knews or ought to have known that they are HIV-positive and who undertakes acts, including “intimate conduct”, with another without disclosing their status. The penalties for this offence would have been ten years’ imprisonment for “intentional exposure” and seven years for “reckless exposure”. The amendment would have also added the offence of “negligent transmission of HIV” for medical circumstances.
An incident reported in 2009 is the only known case of HIV criminalisation in Trinidad and Tobago. In the case a man who was living with HIV was sentenced to 30 days’ hard labour after allegedly threatening to throw vials of blood over a police officer who confronted him for selling DVDs on the street without a licence. Despite the accused’s denial of the allegations, the judge found him guilty and considered the threats as “death threats”.
Laws
Sexual Offences Act
34E – (1) Where a person is convicted of an offence under the sections to which this section applies, the Court will shall require that the person be medically examined.
(2) Where upon such examination it is found that the person examined is suffering from the Human Immune Deficiency Virus (hereinafter referred to as “HIV”) or any other communicable disease, information to that effect shall be given promptly to the virtual complainant and the person examined.
(3) Subject to subsection (2), the information shall be confidential.
(4) Where it is found upon examination that the complainant has contracted HIV or any other communicable disease the Court, upon application by the complainant and upon being satisfied on a balance of probabilities that the complainant contracted the disease as a result of the offence, may order the defendant to pay to the complainant compensation in addition to any amount ordered under section 4(3).
(5) This section applies to sections 4, 9, 10, 12 and 13 of this Act and sections 18 and 19 of the Children Act.
Traficking in persons Act - Act 14 of 2011 Amended by 12 of 2012
21. (1) Notwithstanding the penalty imposed under section 16, 17, 18 or 19, where a person is convicted under any of those sections and there is the presence of any of the following aggravating circumstances resulting from acts of the convicted person:
(a) caused another to use or threaten to use, a dangerous weapon;
(b) the trafficked person suffered a serious bodily injury, or permanent or life-threatening injury;
(c) in the course of trafficking or subsequent exploitation, the convicted person caused the trafficked person to be exposed to a life- threatening illness, or the convicted person caused the trafficked person to become addicted to any drug;
(d) a sexual assault was committed against the trafficked person;
…
The court may impose an additional term of imprisonment of up to fifteen years.
(2) in this section
“dangerous weapon” means—
(a) an instrument capable of inflicting death or serious bodily injury; or
(b) an object that is not an instrument capable of inflicting death or serious bodily injury, but closely resembles such an instrument, or is used in such a way that it creates the impression that the object is an instrument capable of inflicting death or serious bodily injury;
“life-threatening illness” means
– any illness that involves a substantial risk of death, and includes Human Immuno Deficiency Virus Infection (HIV/AIDS) and tuberculosis;