Overview
Cape Verde criminalises HIV transmission under an HIV-specific law.
In 2007, Cape Verde passed an HIV-specific law that allowed for the use of general disease law to prosecute people with HIV for ‘exposure’ or transmission. Article 30 of Law 19/VII/2007 stated that anyone who voluntarily transmitted HIV was to be punished under the Penal Code. This law did not include any detail on the type of conduct which would trigger prosecution under the Penal Code, address disclosure, or provide for any safeguards such as condom use or low viral load. Furthermore, formal knowledge of HIV status prior to the act was not an absolute condition for prosecution if it was deemed that the person ‘should have known’ they had HIV (or another specified condition). Intention (or its absence) to cause harm was not relevant.
Article 155 of the Penal Code criminalises exposing a person to an STI or other serious illness through a sexual act, while Article 156 criminalises exposure to a serious illness not covered by Article 156. Under both provisions, the act of ‘exposure’, which is undefined, is sufficient and transmission is not required. These offences carry a penalty of imprisonment of up to two years and a fine of 60 to 150 days, or two to six years’ imprisonment if a more severe penalty is not applicable under another law.
In 2022, the 2007 law was replaced by Law 7/x/2022. Article 46 of this law continues to criminalise HIV transmission, however HIV ‘exposure’ is no longer criminalised. This provision frames criminalisation around non-disclosure, which is an obligation imposed on people living with HIV under Article 28 of the law where there is a ‘real and current risk of infection, revealed by the viral load result’. Where someone who is aware of their HIV status fails to disclose their status, has unprotected sex, and this results in transmission, they are liable to prosecution under Article 156 of the Penal Code.
The 2022 law is therefore a significant improvement on the 2007 law, as it limits prosecutions to actual transmission where someone is aware of their HIV status, builds in safeguards against prosecution including low viral load and condom use, and provides for a defence of disclosure.
In addition, under Article 151 of the Penal Code, HIV-positive status may also be considered an aggravating factor and be used to increase penalties by between a third to a half for a number of sexual assault offences.
HJN is not aware of any HIV-related criminal cases to date.
Laws
Law No. 7/x/2022 of 16 May, that defines the legal framework for prevention and comprehensive care for HIV/AIDS
Article 28. Disclosure of the result to the spouse or sexual partner
1. When there is a real and current risk of infection, revealed by the viral load result, the person living with HIV must inform their serological status to their spouse or sexual partner(s) as soon as possible, within thirty days after diagnosis.
Article 46. Risk of HIV/AIDS infection through sexual intercourse
A person living with HIV who, knowing their serological status, does not inform their spouse or sexual partner(s), under the terms set out in paragraphs 1 and 3 of article 28, and there is a real and current risk of infection, revealed by the result of the viral load, and nevertheless proceeds to have unprotected sexual relations or acts and this act results in the infection of the spouse or sexual partners, is punished under the terms of article 156 of the Penal Code.
Penal Code
Article 155. Exposure of others to illness by sexual act
Anyone who exposes another person, through sexual intercourse or act, to venereal disease or another serious illness, of which he knows or should know that he is suffering or is infected or contaminated, shall be punished with imprisonment for up to 2 years or with a fine of 60 to 150 days, if a more serious sanction is not due to you under another legal provision.
Article 156. Danger of contagion of serious disease
Anyone who commits, for the purpose of transmitting to another person a serious illness that is suffering, is affected or contaminated, an act capable of producing the infection or the contagion, will be punished with imprisonment from 2 to 6 years, if a more serious sanction is not due to you under another legal provision.
Article 151. Aggravation
(…)
(2) The penalties provided for in articles 142, 143, 144, 145, 146, 148, paragraph 1 and 150 shall be increased by one third at the minimum limit and one half at the maximum limit if the behavior described therein results in pregnancy, serious integrity offense, transmission of serious and incurable disease, suicide or death of the victim.
Law No. 19/VII/2007 from 26 November, that regulates aspects related to HIV / AIDS prevention, treatment and control
Article 30. Voluntary Transmission of HIV
Anyone who voluntarily transmits HIV will be punished under the incriminating legal types of this behaviour provided for in the current Penal Code.
Acknowledgements
Our thanks to UNAIDS for their research assistance to confirm current relevant legislation.
HIV Justice Network's Positive Destinations
Visit the Cape Verde page on Positive Destinations for information on regulations that restrict entry, stay, and residency based on HIV-positive status, as well as access to HIV treatment for non-nationals.