Brazil

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Brazil: Activists celebrate as ‘deliberate HIV transmission’ law amendment is withdrawn

01 Sep 2017
Yesterday, news broke that populist Congressman, Pompeo de Mattos, has withdrawn an amendment originally proposed in 2015 to make ‘deliberate’ HIV transmission a ‘heinous crime’. The amendment, Bill No. 198, 2015, would have added to the list of heinous crimes … More

Brazil: HIV-specific criminal law introduced amid media frenzy and moral panic over ‘barebacking’ gay subculture

27 Mar 2015
On April 2nd 2015, a simply worded amendment to Article 1 of Law No. 8072 of July 25, 1990 – covering ‘heinous crimes’ – will be presented to the Brazilian Parliament by the populist Congressman, Pompeo de Mattos. The amendement, draft Bill … More

Brazil: Health ministry says no to criminalisation following two high-profile prosecutions

27 Nov 2009
Brazil’s Ministry of Health is preparing a public statement in which it recommends that prosecutions for negligent or reckless HIV exposure or transmission cease. Rather, only intentional transmission where both intent and transmission are proven, in accordance with UNAIDS guidance, … More

Last reviewed 01 June 2017

Country overview

Specific law enacted

No

Specific law detail

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: Yes

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecution count

5

Minimum

Conviction count

5

Exact number of convictions unclear.

Discussion

There are relatively few prosecutions known about in Brazil, five in total. The issue came to a head in 2009 following two high-profile prosecutions in São Paulo. Both the Federal Ministry of Health and the Sao Paulo Ministry of Health 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.

In April 2015, Draft Bill No. 198/2015, an amendment to Article 1 of Law No. 8072 of July 25, 1990, proposing to add individuals who “transmit and infect consciously and deliberately others with the AIDS virus. [sic]” to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death –with a penalty of imprisonment from two to eight years, and fine, was presented to Parliament by the populist Congressman, Pompeo de Mattos. The bill was in response to a moral panic due to media reports earlier in the year of a gay ‘barebacking’ subculture where anonymous interviewees alleged that some men were deliberately passing on HIV to unsuspecting partners. Defences are unclear, as the proposed amendment uses the terms ‘consciously and deliberately’ without further elaboration. 

To date, interventions on the proposed amendment from UNAIDS, the Ministry of Health, former President Fernando Henrique Cardoso, and press releases from three Brazilian civil society organisations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) have been unsuccessful. Despite public debate, the proposed law continues to be considered by Parliament (see Latest cases and news) . Follow the progress of bill PL 198/2015 here.

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: Yes

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 5

Minimum

Convictions

Number of convictions 5

Exact number of convictions unclear.

Laws

Applicable laws

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

Applicable key wording

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.

Discussion

There are relatively few prosecutions known about in Brazil, five in total. The issue came to a head in 2009 following two high-profile prosecutions in São Paulo. Both the Federal Ministry of Health and the Sao Paulo Ministry of Health 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.

In April 2015, Draft Bill No. 198/2015, an amendment to Article 1 of Law No. 8072 of July 25, 1990, proposing to add individuals who “transmit and infect consciously and deliberately others with the AIDS virus. [sic]” to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death –with a penalty of imprisonment from two to eight years, and fine, was presented to Parliament by the populist Congressman, Pompeo de Mattos. The bill was in response to a moral panic due to media reports earlier in the year of a gay ‘barebacking’ subculture where anonymous interviewees alleged that some men were deliberately passing on HIV to unsuspecting partners. Defences are unclear, as the proposed amendment uses the terms ‘consciously and deliberately’ without further elaboration. 

To date, interventions on the proposed amendment from UNAIDS, the Ministry of Health, former President Fernando Henrique Cardoso, and press releases from three Brazilian civil society organisations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) have been unsuccessful. Despite public debate, the proposed law continues to be considered by Parliament (see Latest cases and news) . Follow the progress of bill PL 198/2015 here.

.

 

Further reading

Latest cases and news can be found at: http://www.hivjustice.net/country/br/

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

Cases

Overview

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.

Last reviewed 01 June 2017

Overview

Entry laws

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

Last reviewed 01 June 2017

Overview

Male-male relationships

Legal

Male-male marriage

Legal

Female-female relationships

Legal

Female-female marriage

Legal

Last reviewed 01 June 2017