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A 22-year-old man was sentenced yesterday in Córdoba to three years and six months in prison, accused of transmitting the human immunodeficiency virus (HIV) to a former partner. Judge Enrique Buteler, of the Sixth Criminal Court, based the sentence on the criminal charge of "very serious bodily harm," despite rejecting the charge of "transmission of a venereal disease"—stipulated in Article 18 of Law 12331 on Prophylaxis—under which he initially came to trial.

The complainant and the now convicted man had maintained a relationship between 2018 and 2019. In mid-2018, she became pregnant and prenatal studies detected that she was living with HIV, although later tests performed on the baby would come back negative.

Prosecutor Bettina Croppi of the Domestic Violence Court, who led the investigation and ordered the defendant's arrest, had requested a sentence of four years and eight months in prison during her closing argument. Defense attorney Susana Lucero, in turn, requested acquittal, arguing that the transmission of the virus had not been proven, nor had it been established that the defendant knew he was living with HIV.

“He shouldn’t have been convicted,” the lawyer told Presentes. “The alleged transmission couldn’t be proven. The court’s own medical expert specializing in infectious diseases said that it’s not possible to determine who transmits to whom, in general and in this particular case,” Lucero pointed out. She explained: “His partner found out she was HIV-positive on August 29, 2018, and he was tested on September 5, so he couldn’t have known he was a carrier. That’s the only conclusive evidence in this case.”

His client is 22 years old and could be released in March or April, as he has been held in pretrial detention at the Bouwer prison since September 2019. For Lucero, this is “another of the lamentable injustices in this case. Pretrial detention should be an exceptional measure. This young man comes from a very humble background and could hardly obstruct the investigation, much less flee. Where could he go, if he doesn't have a penny to his name?”

When asked by reporters, prosecutor Croppi declined to comment until the legal arguments are released on October 28. At the start of the trial, in statements to Radio Universidad and Cba 24N , she stated that the defendant was “accused of living with a sexually transmitted disease, HIV, and knowingly infecting others.”

A setback of thirty years

According to lawyer Matías Muñoz, from the Positive Cycle Association, which specializes in HIV/AIDS, the sentence “is a disgrace, because he is convicted of a crime of assault while at the same time being acquitted of the crime under the prophylaxis law due to insufficient evidence.”

“What does this mean? A person is acquitted of a crime because it couldn't be proven they committed it, and yet they are convicted of a crime that is a consequence of the alleged previous crime. That's a criminal absurdity. We understand that the ruling responds to pressure from the prosecution and the media, and it's a setback in respect for human rights and constitutional guarantees,” Muñoz questioned.

The director of the Provincial HIV/AIDS and STD Program, Diosnel Bouchet, informed Presentes that upon learning of the criminal proceedings they contacted the judicial actors so that they “could take part in the matter with all the elements” and that they await a meeting with the Ministry of Justice to “have more elements and a clearer opinion” on the sentence.

However, he stated: “Law 23798 (National AIDS Law) establishes that everyone is free to disclose their diagnosis to whomever they wish. It also assumes that HIV transmission occurs in consensual relationships between adults, where both parties, exercising their individual freedoms, must take precautions. But it seems the conviction was for assault, not for HIV transmission.”

“Generally speaking, portraying a person with HIV as a criminal is a tremendous setback in the fight for human rights, taking us back to the early 1990s. On the other hand, the message to the community is that this should not generate more discrimination, phobia, and isolation related to HIV/AIDS, but rather that I take this opportunity to encourage anyone in the community who has had unprotected sex to come forward, get tested, seek advice on sexual health, and begin practicing safe sex,” the official added.

For his part, Ignacio Maglio, coordinator of the rights promotion area at the Huésped Foundation and member of the board of directors of the UNESCO Bioethics Network, stated: “Regarding the ruling, we want to await the legal reasoning before properly questioning it. In any case, the Prophylaxis Law has practically become obsolete (expired and inapplicable). It referred to venereal diseases, a biological and utterly sexist term, because the word 'venereal' comes from women, from Venus. Today we speak of sexually transmitted diseases.”

Furthermore, he emphasized that the National AIDS Law and its implementing decree 1244/91 “very wisely establish that confidentiality, privacy, and the protection of the privacy of people with HIV are essential rights that should never be questioned. There is no provision that obliges a person to reveal their serological status to anyone, not to their partner, nor to the dentist, nor to doctors, because biosafety measures are universal and mandatory.”

A twin trial

In July 2003, another man in Rosario was given a three-year suspended sentence for a similar situation. Judge Ernesto Genesi ruled that by concealing his HIV-positive status from his partner and transmitting HIV to her, he had committed the crime of "very serious bodily harm" with "reckless disregard," meaning the defendant had engaged in sexual relations despite knowing the risks involved. The woman also became pregnant and gave birth to a baby, whose tests came back negative.

It was the first ruling to apply that criterion in the country, questioned by specialists and organizations working on HIV-AIDS: it was considered discriminatory towards people with HIV and a violation of their privacy, by suggesting that a person living with the virus was obliged to communicate it.

Penalty: more harm than good

In August 2008, the Joint United Nations Programme on HIV/AIDS (UNAIDS) stated: “There is no evidence to suggest that the general application of criminal law to HIV transmission achieves criminal justice or prevents transmission of the virus. Rather, such application risks undermining public health and human rights.” Based on this, UNAIDS urged governments to “limit criminalization to cases of intentional transmission, e.g., when a person knows their HIV-positive status, acts with the intention of transmitting it, or actually transmits it.” Furthermore, it recommended that criminal law relating to HIV transmission be brought into line with “international human rights obligations.”

In the case that concluded yesterday with a prison sentence, the prosecution's case was based on a 1936 law, Law 12331 on the Prevention of Venereal Diseases, which in Article 18 states: “Anyone who, knowing they have a transmissible venereal disease, transmits it to another person will be punished with the penalty established in Article 202 of the Penal Code.” “That's what they were trying to prove with this young man, claiming that because he was male, he infected her and put her at risk,” explains lawyer Lucero. “I want to unravel the issue of shared responsibility. Every adult must take responsibility for their own body, and no one can be blamed for not using protection during sexual relations.”

On February 13, 2012, the Oslo Declaration on the Criminalization of HIV stated in Article 1 that “criminalizing the non-disclosure of HIV status, potential exposure, and unintentional transmission is causing more harm than good in terms of its impact on public health and human rights.” Paragraph 8 is telling: “Criminal laws do not change behavior rooted in complex social issues, especially behavior based on desire and impacted by HIV-related stigma. Such behavior is changed by counseling and supporting people living with HIV with the aim of achieving health, dignity, and empowerment.”