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Criminalisation of HIV transmission in Europe

A rapid scan of the laws and rates of prosecution for HIV transmission within signatory States of the European Convention of Human Rights
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Portugal

Estimated number of people living with HIV: 22,000
Number of people prosecuted for HIV transmission: Information not available
Number of people convicted for HIV transmission: Information not available

Applicable law: Portuguese Penal Code: Articles144, 177 and 283.

Key wording in the law:

Article 144

Who does offend the body or the health of another person:
c) provoking particularly painful or permanent illness, or serious or incurable psychic anomaly; or
d) provoking danger to life.

Article 177

W(3) The penalties foreseen in articles 163º 168º and 172º 175º [sexual crimes] are aggravated in half, in its minimum and maximum limits, if of the described behaviors results pregnancy, offence to serious the physical integrity, transmission of virus of HIV or forms of hepatitis that creates danger for life, suicide or death of the victim.[sic]

Article 183

1. The one
a) Disseminates a contagious disease
b) As doctor or its employee, nurse or laboratory employee, or a person legally authorized to elaborate an examination or a surgical registry, transmits wrong data or results.
c) As chemist or chemist’s employee gives medical substances not according to the medical prescription and,
Therefore, creates a danger for person’s life or a serious danger for its physical integrity, shall be punished with imprisonment from 1 to 8 years.
2. If the danger referred in 1 has been created by a neglect behaviour, the agent is punished with imprisonment up to 5 years.
3. If the behaviour referred in 1 has been created by a neglect conduct, the agent is punished with imprisonment up to 3 years or with a fine.

Discussion:

From the responses received, it appears that there is no precise information about the numbers of people prosecuted and convicted for HIV transmission in Portugal. According to one lawyer, who consulted the Ministry of Justice, no statistical data was available. Positivo gave the same response, but said that this could be interpreted to mean either very few people or no one at all. According to the response from Abraco, no one has been prosecuted. The response from Castelo Branco Associados cited Articles 144 and 177 as being the applicable law in this area. Abraco and Positivo both cited Article 283 as the statute under which prosecution for HIV transmission can be brought. According to Positivo, a search of the databases of the Supreme and High Courts revealed that they were only two decided cases, both of which related to HIV transmission through injecting drug use. Positivo did not indicate the outcome of these cases.

Only the actual transmission of HIV to another person is subject to prosecution. The maximum sentence applicable, according to Article 283, is eight years’ imprisonment.

Transmission of other sexually transmitted infections is also subject to prosecution.

Completed questionnaires were received from Abraco, Positivo and a lawyer with the firm Castelo Branco & Associados.

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