Mexico

Mexico is a republic consisting of 32 jurisdictions. There is both a federal law and individual state laws for each jurisdiction, each with their own criminal provisions.

The federal law and almost all states, with the exception of Aguascalientes and San Luis Potosí, maintain provisions which have the potential to criminalise those living with HIV, predominately through the criminalisation of perceived ‘exposure’ to diseases. The most common formulations of this type found within Mexican criminal codes are perceived ‘danger of contagion’ and ‘endangering the health of another’. Several states, namely Ciudad de México (Mexico City), Colima, Jalisco, Nayarit, and Tabasco, do not have specific crimes related to disease ‘exposure’, but criminalise transmission of diseases arising from the infliction of ‘injuries’, which might be applicable in cases of alleged HIV transmission.

Only two criminalising states, Coahuila and Tamaulipas, make explicit mention of HIV/AIDS within the relevant provisions. The remainder criminalise perceived ‘exposure’ to diseases generally, most frequently referencing ‘venereal diseases’, ‘serious illnesses’, or ‘serious transmissible diseases’.

Additionally, several states criminalise the actual transmission of diseases, which invariably carries more severe penalties.

The provisions within some states stipulate that the victim must be unaware that the accused is living with a disease, which effectively criminalises non-disclosure in these jurisdictions.

The severity of penalties imposed for these offences varies widely from state to state, but most frequently include prison sentences and fines. In some states compulsory medical treatment may be imposed, or the accused may be required to pay for the complainant’s medical costs.

In many states the law sets out enhanced sentences where the disease in question is considered incurable, which could result in long prison sentences for people living with HIV who are accused of having sexual intercourse or committing other acts which carry a perceived risk of ‘exposure’.

As well as specific provisions criminalising perceived ‘exposure’ and transmission, several states consider the general offences of infliction of injury or harm aggravated/premeditated where caused by the transmission of a disease.

Despite the prevalence of criminal laws which could be used to penalise those living with HIV, information on prosecutions is scarce, and we have received few case reports. However, a 2017 report by the Mexican Network Against the Criminalisation of HIV suggested that there had been 39 criminal cases under these provisions; fifteen in Veracruz, nine in Sonora, five in Tamaulipas, five in Estado de México, three in Chihuahua, one in Ciudad de México and one more in Nuevo León. The circumstances and outcomes of these cases are not clear.

We have received two reports of HIV criminalisation after the 2017 report, taking the total cases in Mexico to at least 41. One of these reports related to a high-profile case involving a singer which was made public in December 2020. In the case, a man who had worked as an escort filed a lawsuit against one of his clients, the singer, who he accused of transmitting HIV to him. The complainant alleged that he had sex with the singer with a condom several times before being convinced to have unprotected sex. He subsequently tested positive for HIV. The outcome of the case is not yet known.

In addition to criminalisation, people living with HIV in Mexico may also face restrictions not experienced by other people. For instance, in 2023 Mexico’s National Human Rights Commission drew attention to the ten states which continue to impose a marriage ban on people living with ‘chronic, incurable, hereditary or contagious diseases’, calling on them to repeal these laws. The states are obliged to respond to the Commission’s recommendation.

In recent years, there has been significant progress in the reform of Mexico’s laws affecting people living with HIV. Advocacy by state groups, and organised by the nationwide Mexican Network Against the Criminalisation of HIV, has led to modernisations and repeals in Baja California Sur, Nayarit, and Ciudad de México. Further repeal initiatives have been proposed in Estado de México and the federal territory, while proposals for new HIV laws have been stopped by organised advocacy in Puebla, Quintana Roo, and San Lui Potosí.

Federal law

The Mexican federal criminal law penalises perceived ‘exposure’ and injuries caused by transmission of diseases.

Article 199bis of the Federal Penal Code states that anyone who knows they have a venereal disease or other serious illness, and who puts another at perceived ‘danger of contagion’ through sexual intercourse or other means, is liable for imprisonment from three days to three years, and a fine of up to forty days. Where the disease is incurable, the penalty is increased to six months to five years’ imprisonment.

In the case of partners, prosecution can only proceed following their complaint.

In January 2021, a deputy of the Citizen Movement proposed to add a fourth paragraph to Article 199bis which would explicitly criminalise the act of ‘stealthing’, that is non-consensual condom removal, which results in the transmission of a venereal disease or pregnancy. The proposal would see these acts punished with three to eight years’ imprisonment and a fine of 80 days. To date this proposed amendment has not been enacted.

In December 2023, Morena deputy María Clemente García Moreno, the country’s first openly transgender legislator, introduced an initiative to repeal Article 199bis, noting that the law is disproportionate and discriminatory.

Additionally, Article 315 states that the infliction of injuries and homicide will be considered premeditated, that is intentional and with prior consideration, where this is the result of ‘venereal contagion’.