People with HIV or Covid-19 must be especially careful not to get locked up in Mexico City

RIO DE JANEIRO, BRAZIL – (AFP) In June, as Mexico City shone in rainbow colors to celebrate sexual diversity and inclusion, a man was jailed for “risk of contagion” – a crime adapted to the HIV/AIDS pandemic that gained prominence with covid-19.

The image of Juan “N,” as he was identified by the capital’s prosecutor’s office, was circulated as a photo and video. His offense: He had not told an ex-partner that he was HIV-positive.

The offense is called “risk of infection” and can be punished by up to five years in prison if someone, knowing they have an STD or serious illness, infects others “through sexual relations” or “in any other way.”

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“The crime criminalizes people living with a disease, be it HIV or another,” says Geraldina González de la Vega, president of the Mexico City government’s Council for the Prevention and Elimination of Discrimination (Copred).

Complaints, the only means of prosecuting the crime, have escalated amid the covid pandemic. In 2020, the capital’s prosecutor’s office opened 78 investigations for “contagion” and has already opened 52 this year, according to official data, which does not indicate which disease is at the root of the complaints.

But compared to the nine complaints in 2018 and the 12 in 2019, the impact of the coronavirus is clear. Although there are no reports of new detentions, the head of Copred believes it is “necessary” to screen a covid patient.

With 2.7 million confirmed COVID cases and 239,079 deaths, Mexico is the fourth most affected country by the pandemic in absolute numbers. In contrast, 342 new HIV cases have been diagnosed in Mexico City and 9,220 cases nationwide.

STIGMA

According to scientific studies, the “risk of contagion” provision in Mexico’s federal criminal code, which has been in place for decades, is in line with old Catholic-influenced moral codes such as punishing “anti-moral” behavior.

In the 1990s, the spread of AIDS led to tougher provisions in the then-federal district’s nascent criminal code. “The offense of assault can prosecute a person who maliciously infects another person. And if he intends to do so and fails, we have the offense of attempted assault,” González de la Vega explained.

The figure thus contradicts the constitutional principles of human dignity and non-discrimination based on health status. In the case of Juan “N,” the prosecutor’s office irrevocably exposed him by publishing the accusations, his face, and personal data.

“This is illegal,” says Jaime Morales, head of the sexual diversity department at the capitol, who is now working on training and sensitizing the staff who published the information.

Juan’s week-long detention stems from a complaint filed by his former partner, whose lawyers claim she was deceived and endangered. Prosecutors argue that he was arrested for failing to obey a subpoena.

The judge eventually ruled that he could continue his trial at liberty. AFP contacted the suspect and his lawyer, who declined to testify to not interfere with the trial.

EXEMPTION

The offense is also anachronistic from a medical perspective. For two decades, antiretroviral drugs have reduced HIV to the point where it is undetectable and thus no longer transmissible. There are also preventive methods that protect up to 99% from sexual transmission.

“A person who has the virus completely under control (treatment) does not transmit it to their partners,” says Sergio Montalvo, a physician at the Condesa Public Clinic specializing in HIV/AIDS.

Treatment is also free in all public health services in Mexico. Montalvo stresses that HIV-positive people have a choice whether or not to share their diagnosis.

Juan’s case is a painful milestone, but it also opens the door to abolishing the crime. Temístocles Villanueva, a member of the ruling Morena party in the capital’s Congress, will present an initiative in August.

“It’s an intervention by the state in people’s private lives, in their sexual relations,” says Villanueva, who believes criminalization does not reduce contagion. “It leads people to hide their health condition to avoid the risk of being accused,” he adds.