Mexico

Last updated on: 19 February 2016

Criminalisation of HIV transmission/exposure

Mexico
Whether Specific law enacted: 
-
Number of people prosecuted: 
0
Number of people convicted: 
0
Applicable law: 

NEWS: As of AUGUST 2015 from HJN

New legislation passed by the Veracruz state Congress calls for up to five years in prison for “willfully” infecting another with HIV, which can lead to AIDS. The measure is fraught with legal, medical, public health and human rights problems, but supporters insist it will help protect vulnerable women. The Veracruz state Congress has unanimously approved legislation that calls for prison time for anyone who intentionally infects another person with the HIV virus or other sexually transmitted diseases.The amendment to the state penal code makes Veracruz the second Mexican state (after Guerrero) to criminalize the sexual transmission of illnesses. Another 11 states have sanctions in the books for infecting others with “venereal diseases,” a term and concept no longer used in the medical community.But Veracruz has stipulated a more severe punishment than the other states — from six months to five years in prison. Guerrero also has a maximum of five years, but it’s minimum is three months.- See more at the HJN site 

 

MEXICAN FEDERAL PENAL CODE - published in the Diario Oficial on August 14, 1931
EXISTING TEXT, Last reform published DOF June 26, 2008 (Unofficial translation)
Book II - Special Part - Title VII - Crimes against Health - Chapter II - The danger of contagion
Title XIX - Crimes against life and bodily integrity - Chapter III - Common rules for injuries and homicide
Article 199 Bis - Danger of Contagion
Article 315 - Aggravated Injures and Homicide
 

Key wording in the law: 

MEXICAN FEDERAL PENAL CODE - published in the Diario Oficial on August 14, 1931
EXISTING TEXT, Last reform published DOF June 26, 2008 (Unofficial translation)
Book II - Special Part - Title VII - Crimes against Health - Chapter II - The danger of contagion
Article 199 Bis - Danger of Contagion
Anyone knowing that he is ill with a bad venereal disease or with any other serious infection illness during incubation period, risking contaminating the health of another, through sexual act or through any other transmissible way, shall be liable for three days to three years imprisonment and a fine of up to forty days.
If the illness suffered should be incurable, the penalty of six months to five years in prison shall be imposed.
In the case of spouse, partner or concubines, the case shall only be prosecuted with a lawsuit from the victim.
Book II - Special Part - Title XIX - Crimes against life and bodily integrity - Chapter III - Common rules for injuries and homicide
Article 315 - Aggravated Injures and Homicide
Understand that injures and homicide are qualified when those commit with premeditation, advantage, treachery, or betray.
There is premeditation ever the, offender intentionally cause an injury after had been reflectionate about the crime will be committed.
Will be presuming the premeditation exist when injuries or homicide will be committed by flood, fire, mine, bombs or explosive; by poisons or any substance harmful to health, venereal contagion, suffocation, enervating substances, or retribution given or promise, by torture, depravation cause or brutal fierceness.
Original Spanish Version
CÓDIGO PENAL FEDERAL MEXICANO - publicado en el Diario Oficial el 14 de agosto de 1931. TEXTO VIGENTE, Última reforma publicada DOF 26 de junio de 2008.
Libro II - Parte Especial - Título VII - Delitos contra la Salud - Capítulo II - Del Peligro de Contagio
Artículo 199-Bis - Peligro de Contagio
El que a sabiendas de que está enfermo de un mal venéreo u otra enfermedad grave en período infectante, ponga en peligro de contagio la salud de otro, por relaciones sexuales u otro medio transmisible, será sancionado de tres días a tres años de prisión y hasta cuarenta días de multa.
Si la enfermedad padecida fuera incurable se impondrá la pena de seis meses a cinco años de prisión.
Cuando se trate de cónyuges, concubinas, sólo podrá procederse por querella del ofendido.
Artículo 315 - Homicidio Calificado
Se entiende que las lesiones y el homicidio, son calificados, cuando se cometen con premeditación, con ventaja, con alevosía o a traición.
Hay premeditación: siempre que el reo cause intencionalmente un lesión, después de haber reflexionado sobre el delito que va a cometer
Se presumirá que existe premeditación cuando las lesiones o el homicidio se cometan por inundación, incendio, minas, bombas o explosivos; por medio de venenos o cualquiera otra sustancia nociva a la salud, contagio venéreo, asfixia o enervantes o por retribución dada o prometida; por tormento, motivos depravados o brutal ferocidad.

Discussion: 
  • The Criminal Code of the Mexican Federal Republic, with more than 70 years, has been refurnished many times. In 1940, is added the article 199-Bis, reformed in 1991. This is one of the articles that clearly punished the danger of contagion. The reckless of put somebody in danger of contagion is enough to sanction in the Mexican Penal Law, no matter if is intentional or not.
  • The article not mentions expressly the HIV danger transmission, but is perfectly applicable.
  • In addition, the common rules applicable to injures and homicides, consider venereal contagion as a premeditation conduct that qualifie and aggravate the crime.
  • The persistence of an article that sanctions the danger of contagion, contrast with the advances that Mexico has in human rights appreciated, specially in norms about gender and diversity.

 

Survey respondents/Organisations working on HIV and the Law: 

However, with Mexico as a federal republic, each state has rules within its jurisdiction to a greater or lesser degree, are independent of the national standard.
Ricardo Hernandez Forcada , coordinator since 2004 of the HIV Program of the National Human Rights Commission of Mexico, along with Omar Feliciano Mendoza, have prepared a comparative table of the criminal laws of the several States of Mexico criminalizing the exposure of a person spread of a communicable disease when it is done intentionally, either as a separate offense, or as a qualifier for the crime of homicide or injury.
According to this document, except for Aguascalientes and San Luis Potosi, all states of the United Mexican States, criminalizes the exposure to communicable diseases. Only the State of Guerrero made specific mention of HIV exposure as a crime:
Article 195 A. - Who knowing that have sexually transmitted diseases in infecting period, including acquired immunodeficiency syndrome, has intercourse with a person who ignores status and health risk thereof, shall be punished with imprisonment for three months to five years and fines of twenty to one hundred days of wages; without detriment subject to its placement in a medically appropriate to cease the infective period.
To married couples, prosecutions only proceed by complaint of the offended.
In September 2009, various media reported reactions in Mexico and Latin America from human rights and civil society organizations categorized as Criminalization of HIV, the reform proposed and ultimately adopted in Article 444 of the Criminal Code of the State of Chiapas, who introduced the penalty of exposure to contagious STDs conditional on the infectious person has knowledge of the infection which has caused and the victim.
This reform includes a paragraph that states that it is presumed that the active subject is aware of his illness, when injuries or external signs caused by it, easily discernible, or when, knowing of his condition is being treated medically.
Despite opposition, the reform was approved.
However, the sources tell us have not to date knowledge of cases brought to justice for this cause. Indicate that this may be through conditions of the offense: prior knowledge of the active subject and disregard for the taxpayer, often difficult to prove.

Number of people living with HIV: UNAIDS/WHO

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

Notiese

Portalsida

Periodismo Sin Censura

Amigos Contra el Sida

Centro para la Prevención y Control del VIH/Sida - CENSIDA

Comisión Nacional de los Derechos Humanos - CNDH

Other laws and policies with an impact on responses to HIV

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

There are no specific entry regulations for people living with HIV andAIDS (neither for immigrants nor for tourists).
Regulations in the Mexican law on foreigners consider the reason of stay and the person’s residency status. There is no reference to serostatus or HIV/AIDS as a condition. Specific regulations are online at www.inami.mx.
We have no information about specific conditions on importing antiretroviral medication for personal use.
HIV/AIDS is not grounds for expulsion.

For updated information, please go to: http://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: Recognized on national level

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