Brazil

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Brazil
Whether Specific law enacted: 
No
Number of people prosecuted: 
Min. 5
Number of people convicted: 
Min. 5
Applicable law: 

BRAZILIAN PENAL CODE, January 1st, 1942. Unofficial translation

SPECIAL PART- TITLE I - Chapter III - Endanger Life and Health

Article 130 - Danger of venereal contagion

Article 131 - Danger of contagion from severe disease

Article 132 - Danger to life or health of others

SPECIAL PART- TITLE VIII - Chapter III - Crimes against public health

Articles 267 - Epidemic

Article 268 - Violation of preventive health measure

Key wording in the law: 

BRAZILIAN PENAL CODE, January 1st, 1942. Unofficial translation

SPECIAL PART- TITLE I - Chapter III - Endanger Life and Health

Danger of venereal contagion

Article 130 - Expose someone through sexual intercourse or any lewd act, the contagion of venereal disease, that it knows or should know that is contaminated: 
Penalty - detention of 3 (three) months to one (1) year or a fine. 


Section 1 - If the intention is to transmit the disease agent: Penalty - imprisonment of from one (1) to 4 (four) years and a fine. 


Section 2 - only take place through representation.

Danger of contagion from severe disease

Article 131 - Practice, in order to forward another serious disease that is contaminated, act capable of producing the contagion: 
Penalty - imprisonment of from one (1) to 4 (four) years and a fine.

Danger to life or health of others

Article 132 - Expose the life or health of others to direct and imminent danger: 
Penalty - detention of 3 (three) months to one (1) year, is the fact no crime more serious.

SPECIAL PART- TITLE VIII - Chapter III - Crimes against public health

Epidemic

Article 267 - Causing epidemic, through the spread of pathogenic germs: Penalty - imprisonment of 10 (ten) to 15 (fifteen) years. 


Section 1 - If a death result, the penalty is applied twice. 


Section 2 - In case of guilt, the penalty is of imprisonment of 1 (one) to 2 (two) years, or, if death results, of 2 (two) to 4 (four) years.

Violation of preventive health measure

Article 268 - Violate determination of public power, to prevent introduction or spread of contagious disease: 
Penalty - detention of 1 (one) month to one (1) year and a fine.

Single paragraph: The penalty is increased by one third, if the agent is an official public health or exercising the profession of doctor, pharmacist, dentist or nurse.

Original Portuguese Version

CÓDIGO PENAL BRASILEIRO. 1 de janeiro de 1942.

PARTE ESPECIAL - TÍTULO I - Capítulo III - Da Periclitação da Vida e da Saúde

Perigo de contágio venéreo

Art. 130 - Expor alguém, por meio de relações sexuais ou qualquer ato libidinoso, a contágio de moléstia venérea, de que sabe ou deve saber que está contaminado:
 Pena - detenção, de 3 (três) meses a 1 (um) ano, ou multa.


§ 1 - Se é intenção do agente transmitir a moléstia:
 Pena - reclusão, de 1 (um) a 4 (quatro) anos, e multa.


§ 2 - Somente se procede mediante representação.

Perigo de contágio de moléstia grave

Art. 131 - Praticar, com o fim de transmitir a outrem moléstia grave de que está contaminado, ato capaz de produzir o contágio:
 Pena - reclusão, de 1 (um) a 4 (quatro) anos, e multa.

Perigo para a vida ou saúde de outrem

Art. 132 - Expor a vida ou a saúde de outrem a perigo direto e iminente: Pena - detenção, de 3 (três) meses a 1 (um) ano, se o fato não constitui crime mais grave.

PARTE ESPECIAL - TÍTULO VIII - Capítulo III - Dos Crimes contra a Saúde pública

Epidemia

Art. 267 - Causar epidemia, mediante a propagação de germes patogênicos: Pena - reclusão, de 10 (dez) a 15 (quinze) anos.

§ 1 - Se do fato resulta morte, a pena é aplicada em dobro.

§ 2 - No caso de culpa, a pena é de detenção, de 1 (um) a 2 (dois) anos, ou, se resulta morte, de 2 (dois) a 4 (quatro) anos.

Infração de medida sanitária preventiva

Art. 268 - Infringir determinação do poder público destinado a impedir introdução ou propagação de doença contagiosa: Pena - detenção, de 1 (um) mês a 1 (um) ano, e multa.

Parágrafo único. A pena é aumentada de um terço, se o agente é funcionário da saúde pública ou exerce a profissão de médico, farmacêutico, dentista ou enfermeiro.

Key Cases: 

The first known prosecution took place in 1995 under art. 131 , when a woman  was sentenced to a year in prison because she failed to inform her partners that she had HIV.  The woman testified she had always required the use of condoms with her partners.

One of two high profile cases in 2009 involved a married man who was charged with attempted murder for not disclosing his HIV status to his mistress during their three year affair, and who subsequently tested HIV-positive. His wife of 25 years knew he was HIV-positive and they always used condoms, and she is not a complainant. In the first trial in 2004, the Grand Jury found him guilty of attempted murder and he was sentenced to eight years in prison. This was upheld on appeal, but a second appeal based on a legal technicality led to a second trial in 2009 in which he was charged, and found guilty of, the lesser charge of assault, and sentenced to two and half years - time he had already served.

The second case involved another heterosexual man who had also been charged with attempted murder for having unprotected sex without disclosure with three women, two of whom subsequently tested HIV-positive. The Supreme Court decision is attached below.

In May 2011, the Santa Catarina State Court of Appeal upheld the conviction under art. 131 imposed on a woman with HIV who  had sex with multiple partners without disclosing her HIV-positive status. She was sentenced to two year sand one month's imprisonment in an open prison. The woman was also found to have committed fraud, by asking a friend to take an HIV test on her behalf in order to misrepresent to prospective partners that she was HIV-negative.

Discussion: 

Few prosecutions are known about in Brazil, although the issue came to a head in 2009 following two high-profile prosecutions in São Paulo.

The Federal Ministry of Health and the Sao Paulo Ministry of Health both produced technical notes (attached, below) in 2009 expressing their concerns and highlighting the problems of criminalising non-intentional transmission and asking that current laws be adjusted to take into account recent developments in HIV prognosis and transmission risk.

Survey respondents/Organisations working on HIV and the Law: 

Lastest information and documents provided by Jorge A Beloqui, Secretary of GIV (Grupo do Incentivo à Vida).

We are also grateful to Edgar Carrasco (ex-Director ACCSI-Human Rights Organization, Caracas-Venezuela) who provided the most of the laws that could be potentially used.

Associação Brasileira Interdisciplinar de AIDS (ABIA)

GESTOS - Soropositividade, Comunicação Gênero

Further reading: 

Attached below is a 2010 powerpoint presentation by Jorge Beloqui on HIV criminalisation (in Portuguese).

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

To our knowledge, there are no specific legal regulations regarding the entry or residence of HIV positive people. An existing residence permit can't be cancelled on the sole ground of HIV or AIDS. Neither a medical certificate nor an HIV test result is required when entering the country.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Inferior subsitute recognized in some areas

For updated information, please go to: http://ilga.org