Peculiarities of criminal liability for HIV infection

According to Art. 41 of the Constitution of the Russian Federation, every citizen has the right to protect and protect their own health. In the case of deliberate HIV infection, there is an encroachment on social relations that secure the right of every person to life and health. The article for HIV infection is enshrined in Chapter 16 of the Criminal Code of the Russian Federation and refers to crimes against human life and health.

To date, the legislator has regulated this issue in detail. The norm enshrined in the article for HIV infection of the Criminal Code of the Russian Federation is blanket and refers to other regulatory legal acts. When considering liability for HIV infection, it is necessary to comprehensively study the norms of the Criminal Code of the Russian Federation and other Federal laws of the Russian Federation.

Regulatory regulation

HIV infection is the abbreviated name for the human immunodeficiency virus, which attacks the immune system and leads to the emergence and development of AIDS. Since the beginning of the 20th century, HIV and AIDS have become one of the global threats to humanity, as a result of which many states began to fight them.

Federal Law No. 38-FZ imperatively states that HIV infection is a disease caused by the corresponding HIV virus. At the same time, the legislator argues that HIV infection is becoming widespread throughout the world, creating a threat to the individual and the state, which is why it is necessary to take effective measures to prevent and protect the population.

Article 13 of the legislation under consideration establishes that any person who is a carrier of the infection must be notified in writing by a medical officer of the importance of further compliance with precautionary measures. This is necessary to avoid further spread of infection and prosecution under the article of the Criminal Code of the Russian Federation for contracting HIV infection.

Grounds for criminal prosecution

According to the general provisions of criminal law, the only basis for bringing a person to criminal justice is the presence of a crime under the relevant article of the Criminal Code of the Russian Federation for HIV infection. The corpus delicti is a certain set of objective and subjective characteristics characteristic of a specific crime and defining it as such.

The corpus delicti consists of 4 elements: object, subject, objective and subjective side. For any corpus delicti, their presence in the aggregate is characteristic and obligatory. In the absence of any of them, it will not be possible to attract a person to the MA.  

According to the disposition of the article of the Criminal Code of the Russian Federation, HIV infection is possible as 2 separate compounds:

• any actions that create a threat of infection;
• actions due to which infection has already occurred.

For this reason, it is necessary to analyze each element separately.

An object

The object of any crime is the specific social relations that were violated. In the case under consideration, these are relations related to the right of every person to life and health.

In case of qualification under Part 1 of Art. 122 of the Criminal Code of the Russian Federation (putting in danger) there is a real threat of harm to relationships. If qualified under other parts of the article (infection of a person), real physical and moral harm is caused to the relationship.

Objective side

OS is an external manifestation of a crime in reality. In other words, a specific action or inaction that a criminal commits.

It follows from the disposition of Article 122 of the Criminal Code of the Russian Federation that HIV infection is possible in several ways. At the same time, the method of committing the crime does not in any way affect the final qualification.

Putting someone in danger is possible only through the active actions of the perpetrator; inaction is unacceptable. HIV infection can be transmitted through blood or mucous membranes, so in practice the most common infection is through sexual contact. The list of transfer methods is open and other options are possible.

The crime provided for in Part 1 of this article is considered committed from the moment of committing actions that could lead to infection.

It will not be possible to hold a person accountable if he followed all the recommendations for caution. The article provides for liability exclusively for intentional infection with HIV. The MA does not occur if the second person was notified in advance about the presence of the disease in the first person and agreed to take actions that create a risk of infection.

Article 122 HIV infection identifies three separate parts, each of which constitutes a crime:

• Part 2 – infection by a person who knew about the presence of the disease;
• Part 3 – an act similar to the previous one, but committed against 2 or more persons;
• Part 4 – infection that occurred due to failure to perform duties by an employee.

The crime provided for in Part 2 – Part 4 of the article in question must have the following characteristics:

• actions of a virus carrier that led to the virus entering the body of another person;
• detection of the virus in the victim’s body;
• establishing a connection between these 2 elements.

Here, the article of the Criminal Code of the Russian Federation provides for liability only for intentional and actual infection with HIV infection. At the same time, the further fate of the infected person, the course of the disease and any other consequences do not affect qualifications.

Subjective side

In the article under consideration, guilt can only be expressed in the form of intent. It is necessary to establish the fact of a person’s awareness of the disease and his subsequent commission of actions that could lead to infection of another person. For example, the article provides for a penalty for concealing the source of HIV infection.

Confirmation of the fact that the perpetrator is aware of the presence of the disease is a written certificate issued without fail, or other circumstances indicating this.

If a person is mistaken about the presence of a disease, the commission of criminal acts will be classified as an attempt. In this case, the fact that he does not have a disease and that no adverse consequences have occurred does not matter.

Subject

An individual who has reached the age of 16 years can be recognized as a criminal. At the same time, according to the Criminal Code of the Russian Federation, intentional infection with HIV is mandatory - the guilty person is aware of the presence of the disease.

According to the qualifying elements of the crime, the subject may be special. Such persons include: medical workers or doctors, as well as other persons who influenced the fact of infection.

Punishment for committing a crime

Depending on qualifications, infecting another person with HIV infection is punishable by: imprisonment for up to 8 years, restriction of freedom for up to 3 years, and a ban on engaging in certain activities for up to 10 years.

The article for contracting HIV infection provides for punishment only in case of concealment of information and commission of further actions that put another person in danger. If the second person knew about the disease in advance and independently decided to commit dangerous actions, the person is exempt from the DL.

An infected person can also expect to receive compensation for moral damages by filing a claim under the rules of civil procedure.