China

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

China
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
None known
Number of people convicted: 
None known
Applicable law: 

Decree of the State Council of the People’s Republic of China No. 457 2006

Article 38. People with HIV positive and AIDS patient shall perform the following obligations:

(1) Accept epidemiological investigation and direction of agencies of diseases control and prevention or inspection/quarantine;

(2) Inform the fact of being infected or suffering the disease to their sexual partner in time;

(3) Inform the fact of being infected or suffering the disease to their medical doctor when they come to see the doctor;

(4) Take necessary precaution measures to prevent others being infected.

People with HIV positive and AIDS patient shall not, on purpose, spread the infection to others by any means.

Article 62. HIV positive or AIDS patient who on purpose spread AIDS shall have the legal liability for compensation in accordance with the civil law, and if a crime is constituted/established/committed, an investigation shall be carried out for criminal liability in accordance with the law.

Key Cases: 

No known cases under the Decree of the State Council of the People’s Republic of China No. 457 2006.

The Frontier Health and Quarantine Law. Order number 46 of the President of the People's Republic of China. Beijing, 1987 has been used to prosecute HIV-positive sex workers who continue to seek clients for "creating a risk of spreading a quarantinable disease", with prison sentences ranging between six months to two years.

Discussion: 

A news report around the enactment of the law in 2006 suggests that Article 62 law may be used by "police [to] crack down on places where AIDS might spread, such as illegal blood collection centres and places were drug users and sex workers congregate".

In 2009, Gansu province in north-western China passed its own law mandating that anyone newly diagnosed must disclose their HIV-positive status to sexual partners within a month of diagnosis. Non-disclosure may result in prosecution for "deliberate" HIV transmission, although the penalties are not clear.  It also stipulates that people with HIV have a responsibility to persuade their sexual partners into receiving counselling and testing.

In March 2012, a news report noted that Guangxi Zhuang autonomous region announced in Janaury 2012 that HIV testing would only be available with full ID and disclosure of HIV-positive results to sexual partners would be mandated. The lack of human rights considerations and privacy provisions have created widespread concern.  (Article from China Daily, attached below)

Of note, the news report suggests that Article 62 is either not being used in this region, or is not widely known: 

Yang Shaogang, a Shanghai attorney with experience in court cases related to HIV and AIDS, also agreed that requiring people to hand over their ID cards before getting screened would do more good than harm. Last year, he represented a woman who sued her ex-boyfriend for infecting her with HIV. During the  trial, the defendant admitted he had withheld news of his diagnosis during the couple's relationship."Although many people are worried about the risks of their personal data being leaked, this (Guangxi's real-name proposal) is necessary for maintaining the safety of society," he said. "In the drafted legislation, people infected with HIV should tell their sexual partners. There is no such specific article in Criminal Law about intentional transmission of HIV."

 
Further reading: 

Other laws and policies with an impact on responses to HIV

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

April 28 2010, the Government of China has announced to lift the entry bar against people with HIV/AIDS with immediate effect. The entry ban against people with leprosy and with sexually transmitted diseases was also lifted. 

It is not clear how the new laws will be implemented in practice and how fast this is happening. It is unclear at this time if prospective visitors will be asked their HIV status on visa entry forms.  (April 2010)

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: No law

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