China

China’s legal system includes national, provincial and local laws and regulations, which can be used for the criminalisation of HIV transmission, ‘exposure’, and non-disclosure. Access to information on relevant laws can be limited, making it challenging to accurately outline HIV criminalisation in China. Below is an overview of the laws and cases we are aware of.

Article 38 of the national Regulations on AIDS Prevention and Treatment outlines a list of obligations on people living with HIV, which includes an obligation to disclose HIV status to partners, inform medical providers, and take necessary measures to prevent HIV transmission. Article 62 states that failure to follow this obligations results in civil liability, and may be investigated for criminal responsibility if it believed a crime has taken place, although the applicable law is not specified.

Sex work by people living with STIs, which includes HIV, is specifically criminalised. Article 360 of the Criminal Law states it is an offence for any person who knows they have a ‘serious venereal disease’ to undertake sex work or engage the services of a sex worker. The penalty applied is imprisonment of not more than five years and a fine, and criminal detention or public surveillance.

While Article 360 uses the examples of syphilis and gonorrhoea and does not mention HIV, criminal prosecution guidance issued in 2017 confirms that the law applies to people living with HIV. The Interpretation by the Supreme People’s Court and the Supreme People’s Procuratorate of Several Issues Concerning the Application of Law to the Handling of Criminal Cases of Organising, Forcing, Inducing, Accommodating or Introducing Prostitution, explicitly outlines under Article 12 that Article 360 applies in cases of sex work by people living with HIV, and does not require transmission to take place.

Furthermore, this guidance also states that Article 95(3) of the Criminal Law is applied in cases of HIV ‘exposure’ through sex work, but also generally in any case where someone knowingly living with HIV has sexual relations without using preventative measures. This appears to apply the law of ‘serious injury’ to any instance of alleged HIV ‘exposure’ through sex. The penalty is that stipulated under Article 234(2), of three to ten years’ imprisonment, enhanced in the case of death or ‘utter disability’.

Provinces and municipalities can also issue their own laws and policies concerning HIV. For instance:

• In 2009, Gansu province in north-western China passed a law mandating that anyone newly diagnosed must disclose their HIV-positive status to sexual partners within a month of diagnosis, and encourage them to receive counselling and testing. Non-disclosure may result in prosecution for ‘deliberate; HIV transmission, although the penalties are not clear.
• In 2020, it was reported that Yunnan province was considering a new law which would criminalise non-disclosure of HIV status to partners, and enable medical professionals to disclose their status.
• In 2024, it was reported that the municipality of Chongqing would revise its laws concerning HIV/STI control to target sexual transmission. The municipal health commission has convened to discuss revisions to the law, and has undertaken research into HIV prevention in the city. The review will result in a “crackdown” on those suspected of transmitting HIV sexually, and those living with HIV who engage in prostitution, solicitation, or drug use. However no concrete proposals were reported.

HIV Justice Network is aware of only four cases from China, although this is likely because media written in Chinese does not routinely appear in our media scanning. The first known case was identified in an academic article on phylogenetic analysis which investigated the possibility of HIV transmission from a man to a woman through unprotected sexual contact.

A more recent case involves an HIV-positive man who bit an officer attempting to carry out a forced eviction. The man was initially detained for 15 days, however his sentence was extended to a year because he was HIV-positive. HIV was not transmitted. The media report is particularly concerning as it wrongly states that HIV has an ‘incubation period’ of up to 20 years. It is unclear whether that is information the court relied on or whether it is an error by the reporter. The reporter also notes that if the bitten officer becomes HIV positive, the accused could be tried for deliberately infecting someone with HIV, suggesting such cases are not unknown.

In 2022, a woman living with HIV in Changsa, Hunan Province, was prosecuted for allegedly doing sex work without using protection. It is not clear if HIV was transmitted. She was sentenced to a fine and one year and four months’ imprisonment. It is not clear under which provision she was charged.

A further case reported in 2024 concerned a woman living with HIV who allegedly worked as a sex worker without disclosing his HIV status. She was convicted under Article 360 of the Criminal Law, and sentenced to imprisonment (the sentence was not reported) and a fine. The media report suggests this is the first case of HIV criminalisation under this law.