Overview
Eritrea’s Penal Code does not contain any HIV-specific laws, however there are several provisions which make it an offence to transmit or cause ‘exposure’ to communicable diseases generally, both in isolation and as an aggravating factor in sexual offences, which could be applied to people living with HIV.
Articles 262 and 263 make it an offence to intentionally and negligently transmit, or cause exposure to, a ‘communicable human disease’. The penalty provided are five to seven years’ imprisonment (Article 262) and six to 12 months’ imprisonment or a fine (Article 262), increased where death occurs to 10 to 13 years’ and one to three years’ imprisonment, respectively. The scope of these laws are not defined, so it is not clear whether any factors such as use of condoms or adherence to medical treatment may preclude prosecution.
Three sexual offences may also be aggravated where a communicable human disease is transmitted, or where ‘exposure’ occurs, during the course of the offence. These offences, aggravated sexual assault (Article 304), aggravated rape (Article 308), and homosexual conduct (Article 310), result in significantly increased penalties, and may also be prosecuted as murder where death occurs.
We are not aware of any cases of HIV criminalisation under these, or any other laws in Eritrea.
Laws
Penal Code
Article 262. Spreading of communicable diseases
(1) A person who intentionally spreads or transmits, or causes exposure to the spread or transmittal of, a communicable human disease, regardless of whether it is treatable or is a public health problem, thereby putting people in danger of death or serious risk to health, is guilty of intentionally spreading of communicable diseases, a Class 7 serious offence, punishable with a definite term of imprisonment of not less than 5 years and not more than 7 years.
(2) If any person who contacted a communicable human disease as described in sub-Article (1) dies as a direct effect of the communicable human disease, the person who has spread or transmitted the communicable human disease, is guilty of aggravated intentional spreading of communicable diseases, a Class 5 serious offence, punishable with a definite term of imprisonment of not less than 10 years and not more than 13 years.
Article 263. Negligent spreading of communicable diseases
(1) A person who negligently spreads or transmits, or causes exposure to the spread or transmittal of, a communicable human disease, regardless whether it is treatable or is a public health problem, thereby endangering people with death or serious risk to health, is guilty of negligently spreading communicable diseases, a Class 1 petty offence, punishable with a definite term of imprisonment of not less than 6 months and not more than 12 months, or a fine of 20,001 – 50,000 Nakfas, to be set in intervals of 2,500 Nakfas.
(2) If any person who contacted a communicable human disease as described in sub-Article (1) dies as a direct effect of the communicable human disease, the person who has spread or transmitted the communicable human disease, is guilty of aggravated negligent spreading of communicable diseases, a Class 9 serious offence, punishable with a definite term of imprisonment of not less than 1 year and not more than 3 years.
Article 304. Aggravated sexual assault
A person who, in committing a sexual assault:
(…)
(c) wounds, maims, disfigures or otherwise causes bodily injury to the assaulted person, or transmits a communicable human disease to the person assaulted or exposes him to the same, regardless whether such disease is treatable or is a public health problem, provided that if the person assaulted dies as a direct effect of the disease, the offender is guilty of murder, punishable under Article 275;
is guilty of aggravated sexual assault, a Class 8 serious offence, punishable with a definite term of imprisonment of not less than 3 years and not more than 5 years.
Article 308. Aggravated rape
A person who commits any rape as defined in Article 307 and:
(…)
(c) wounds, maims, disfigures or otherwise causes bodily injury to the assaulted person, or transmits a communicable human disease to the person assaulted or exposes him to the same, regardless whether such disease is treatable or is a public health problem, provided that if the person assaulted dies as a direct effect of the disease, the offender is guilty of murder, punishable under Article 275;
is guilty of aggravated rape, a Class 4 serious offence, punishable with a definite term of imprisonment of not less than 13 years and not more than 16 years.
Article 310. Homosexual conduct
(1) A person who performs with a person of the same sex an act corresponding to the sexual act, or any other indecent sexual act, is guilty of homosexual conduct, a Class 7 serious offence, punishable with a definite term of imprisonment of not less than 5 years and not more than 7 years.
(2) Except in paragraphs (d), (e), or (f) which apply regardless of the consent of the victim to the act, in instances where the offence described in sub-Article (1) was committed against the will of a person or persons, the offender who:
(…)
(c) wounds, maims, disfigures or otherwise causes serious bodily injury to the person assaulted, or transmits a communicable human disease to the person assaulted or exposes him to the same, regardless whether such disease is treatable or is a public health problem, provided that if the person assaulted dies as a direct effect of the disease, the offender is guilty of murder, punishable under Article 275;
is guilty of aggravated homosexual conduct, a Class 6 serious offence, punishable with a definite term of imprisonment of not less than 7 years and not more than 10 years.
Acknowledgements
Our thanks to UNAIDS for their research assistance to confirm current relevant legislation.
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