Infecting another person with HIV is a criminal act, the sanctions for which are established by Art. 122 of the Criminal Code of the Russian Federation. After all, an infected person, if the necessary caution is not observed, exposes the people around him to serious danger. Of course, in some cases, the carrier of the virus may not know that he has such a dangerous disease, and accidentally infect another person with this disease. In this case, the infected person cannot be held accountable for what he did. After all, he was not aware that he was infected with HIV, so there was no intent in his actions. You will learn more about all this from our article.
General
What is HIV? This question interests many people who have heard about this disease more than once from others. So, as it turned out, HIV is a viral infection that penetrates the human body and begins to slowly destroy it. Thus, a person’s immunity is greatly reduced, he begins to get sick often and can die from any disease that would not be fatal for a healthy citizen.
What do you need to know?
The most common ways of contracting a fatal disease:
- sexual intercourse without contraception (condoms), as well as promiscuity on the side;
- through blood - most often drug addicts become infected in this way, who do not wonder about the fact that they can get HIV, because the main thing for them is to get the desired dose of a prohibited substance;
- from mother to child - the danger for the baby here is manifested in the fact that the mother may not take special therapy so that her child is born without the presence of this virus in the blood, and the latter can also infect the baby through breast milk, which is extremely dangerous; (childbirth in HIV-positive women is carried out only by caesarean section);
- through the seminal fluid of a man or the vaginal secretion of a woman;
- unsterile and contaminated medical instruments;
- You can become infected with HIV through saliva only if there is a wound in the patient’s mouth and the saliva is mixed with the blood of the infected person.
However, a person infected with this virus may not know for a long time that he has a terrible disease. Will there be liability under Art. in this case? 122 of the Criminal Code of the Russian Federation? The answer here is simple. Of course, a person who did not know that he was infected with HIV and did not follow the precautionary rules will not be prosecuted under this article for what he did. After all, there was no intention in his actions to cause irreparable harm to the health of another person.
How should it be understood?
If we turn to the norm fixed in part one of Art. 122 of the Criminal Code of the Russian Federation, you can immediately see that it only deals with intentional infection with HIV. Here it must be pointed out that in this case the person infected with the deadly virus also knows that he has this disease. Nevertheless, the latter consciously commits actions that put another person at risk of contracting HIV. For example, performing sexual intercourse without a condom or using the same instrument for injection (assuming that nothing will happen and a healthy citizen will not catch a fatal infection).
Act due to negligence
This feature is provided for in Part 4. The norm establishes that a subject who improperly fulfills his professional duties is subject to punishment. As a result, the victim acquired a life-threatening disease. We are mainly talking about medical workers and employees of blood transfusion stations. Among them there are people who act frivolously. In particular, this is manifested in poor quality sterilization of medical instruments, reuse of disposable syringes, and so on.
If infection occurs
In this case, a person who is a carrier of the HIV virus will be prosecuted under Article 122 of the Criminal Code of the Russian Federation for his crime, but only if the infected person knew in advance that he was sick with this dangerous disease. But how can you find out that a citizen deliberately infected another person with this disease? After all, the attacker can say that he did not know that he had HIV.
In this case, everything is quite simple. After all, people who know that they are sick with such a fatal disease are specially registered with an infectious disease specialist in the hospital and take therapy to maintain their health. Therefore, it will not be difficult for law enforcement officers to establish this fact.
Some attackers deliberately infect others with a deadly virus, and then admit to it. The punishment in this case can be up to five years in isolation from society.
Myths and statistics
According to the Judicial Department, from 2009 to 2014, 227 people were convicted under Article 122. Another 49 cases were terminated, mainly due to the reconciliation of the parties. 75 people were sentenced to imprisonment, the rest were given suspended sentences or restrictions on freedom. Most of those convicted were prosecuted for actual infection. According to 2014 data, more than half of those convicted were people aged 30 to 49 years, and about a third were women.
In 2014, 19 people were convicted of knowingly placing another person at risk of contracting HIV (part 1 of Article 122), 20 were convicted of actual infection, and the court sentenced two defendants for the same act committed against two or more persons or a minor.
Article 122 is in many ways similar to Article 121 - intentional infection with a venereal disease - but provides for more severe punishment. For example, for infecting a partner with syphilis, gonorrhea and some other diseases, the alleged criminal faces a fine of up to two hundred thousand rubles or up to six months of arrest. For infecting two or more persons or a minor, the maximum penalty is two years in prison.
The Criminal Code of the RSFSR of 1960 also provided for liability for endangerment (Part 1 of Article 115) and actual infection with a venereal disease (Part 2 of Article 115). In the first case, the perpetrator could be sentenced to imprisonment for up to two years, correctional labor for the same period, as well as a fine of up to two minimum monthly wages. In the second case, the offender faced up to three years in prison, or correctional labor for up to two years. Imprisonment for a term of up to five years was provided for those who infected two or more people, or a minor, as well as those previously convicted under the same article. In 1971, the Presidium of the Supreme Council of the RSFSR introduced criminal liability for evasion of treatment for venereal disease (Article 115.1). If a citizen refused to undergo treatment after a warning from health authorities, he faced up to two years in prison, correctional labor for up to one year, or a fine of up to one hundred rubles.
In the commentary to the criminal code, the danger of HIV is explained as follows: firstly, the infected person may not know about his status for a long time and pose a danger to others, and secondly, the disease is virtually incurable, “the patient dies within a short time.” The latter is more a stereotype than the truth: without treatment, an infected person will live another 10-20 years, but thanks to antiretroviral therapy, he has a chance to live to old age.
In 2012, judge Igor Kusakin stopped the criminal prosecution of a Togliatti resident who bit her friend on the wrist. “Having the intent to knowingly put V. at risk of contracting HIV infection, knowing reliably about her disease and having been warned that she would be criminally liable under Article 122 of the Criminal Code if she put another person at risk of contracting the disease AIDS, during the conflict she deliberately caused bodily harm,” the court order states. The case was closed due to the reconciliation of the parties.
“Myths about HIV are a serious problem,” says Ilya Lapin, an activist in the Patient Control movement. “Any person should know that HIV is not transmitted through a bite, kiss or glassware. It is transmitted in only three ways. Firstly, through blood. Secondly, sexually, through the exchange of biological fluids. The third way is from mother to child during pregnancy or breastfeeding. I can bite anyone, but in order to infect the virus, I must bite through the veins of myself and another person and somehow manage to transfuse my blood into his blood. We must not forget that when we cut ourselves, for example, the blood flows out to wash away all the nasty things that may get inside. This is a protective reaction of the body."
In a survey conducted by the Public Opinion Foundation in 2012, 3% of Russians responded that the virus could be transmitted through a handshake. 5% believe that you can become infected through water or food, 7% think that HIV is transmitted through common household items, for example, dishes; another 7% chose the “airborne” option.
In many cases of HIV infection, the exact cause of transmission of the virus is unknown. According to available data from the AIDS Prevention and Control Centers, in 2014, HIV was most often transmitted through non-sterile syringes during drug use (58.4%). The head of the Federal AIDS Center, Vadim Pokrovsky, believes that replacement therapy, which is prohibited in Russia, would help reduce the number of infections. In second place are heterosexual sexual contacts (about 40%). Just over 1% of respondents became infected through homosexual acts. Also in 2014, 11 cases of infection were recorded in hospitals, four of them through unsterile instruments, five through blood transfusions.
The most important
So, as mentioned earlier, infecting a healthy person with HIV is punishable by law. Responsibility for intentionally infecting another person is prescribed in Art. 122 of the Criminal Code of the Russian Federation. The object of this crime is the safety of human life and health. After all, this is exactly what a criminal attempts to do by infecting other people with HIV.
In addition, there are frequent cases of infected people smearing railings in entrances with their blood, as well as scattering used syringes or sticking them into seats in cinemas and other public places. The latter did this in order to infect as many healthy people as possible with a dangerous disease. Most of the infected wanted to do this out of revenge.
Subject and object of the crime
Separately, it is necessary to note the subject of the criminal act.
In this case, it can be not only an infected citizen who is already 16 years old, but also an official (special subject) who, due to dishonest performance of his duties, allowed a completely healthy person to become infected with HIV.
The subjective side is characterized by intent and carelessness, negligence. The latter applies to those persons who, through improper performance of their professional duties, allowed healthy people to become infected with a deadly virus.
The objective side of the act will be a deliberate exposure to the risk of contracting HIV or infecting a person with this disease.
The object, as mentioned earlier, is the safety of human life and health.
Qualified staff
The crime discussed in Part 2 of the commented article is considered completed from the moment the victim acquires the disease and when a causal relationship is established between the consequences and the behavior of the perpetrator. The corpus delicti in this case is considered material. In this case, the subjective part is characterized by a careless and deliberate form of guilt. At the same time, when qualifying, the commission of an act due to negligence is excluded. As a rule, the subject of the crime behaves indifferently or frivolously with regard to the consequences. In this case, the culprit has special characteristics. He, as in order to qualify for the general composition, must be of sound mind and reach 16 years of age. At the same time, he must know that he has HIV.
Nuance
If a person infected with a fatal disease warned another person about his illness in advance, then the HIV patient is exempt from punishment if the partner is still infected. Most often this happens between spouses and cohabitants. After all, many people simply turn a blind eye to the fact that a loved one has HIV and live with it.
It should also be noted here that in this case only those persons who committed the acts recorded in parts one and two of Art. 122 of the Criminal Code.
Special Qualification
But what can an attacker living with a diagnosis of HIV expect if, knowing about his diagnosis, he infected a citizen who is not even 18 years old or several people with the virus? If the criminal act is proven, the latter will face the punishment specified in Part 3 of Art. 122 of the Criminal Code of the Russian Federation. And this is up to eight years in places of isolation from society. In addition, in the form of additional sanctions, the judicial authority may impose a ban on engaging in certain types of activities.
Judicial practice under Article 122 of the Criminal Code of the Russian Federation
Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 15
19. Administrative supervision in relation to an adult who is released or released from prison and has an unexpunged or unexpunged conviction for committing an intentional crime against a minor can be established only if the specified sign is provided as a sign of a crime (simple or qualified) in the relevant norm of the criminal law (for example, paragraph “d” of part 2 of article 117, part 2 of article 121, part 3 of article 122, paragraph “b” of part 2 of article 127.1, articles 150 - 151.1, 156 of the Criminal Code of the Russian Federation).
Resolution of the Supreme Court of the Russian Federation dated November 29, 2019 N 48-UD19-19
convicted under Part 1 of Art. 228 of the Criminal Code of the Russian Federation to 1 year of imprisonment; according to Part 2 of Art. 228 to 3 years 6 months imprisonment; for each of the two crimes provided for in Part 2 of Art. 167 of the Criminal Code of the Russian Federation, to 2 years in prison; according to clause “a”, part 3, art. 131 to 8 years 6 months imprisonment; according to clause “a”, part 3, art. 132 of the Criminal Code of the Russian Federation to 8 years in prison, under Part 1 of Art. 122 of the Criminal Code of the Russian Federation to 9 months in prison.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 29, 2017 N 72-APU17-12sp
convicted under Part 2 of Art. 122 of the Criminal Code of the Russian Federation to two years in prison; according to paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation to eleven years in prison; according to paragraphs “c”, “g”, “h”, part 2 of Art. 105 of the Criminal Code of the Russian Federation to fifteen years in prison; according to Part 3 of Art. - part 2 art. 167 of the Criminal Code of the Russian Federation to three years in prison.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 26, 2017 N 5-APU17-124
As follows from the presented material, within the framework of criminal prosecution, the actions of Karavaev A.A. were qualified under Part 3 of Art. 157 of the Criminal Code of the Republic of Belarus. These actions are punishable under Russian criminal law and correspond to Part 3 of Art. 122 of the Criminal Code of the Russian Federation, the sanction of which provides for punishment in the form of imprisonment for a term of over 1 year.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 27, 2017 N 127-UDp17-19
The Presidium of the Supreme Court of the Republic of Crimea, taking into account the provisions of this Law, amended the verdict and the appeal ruling by reclassifying the actions of E.V. Karelin. and Karelina A.E. from paragraph “d”, part 2, art. 112 of the Criminal Code of the Russian Federation on Part 1 of Art. 112 of the Criminal Code of the Russian Federation, reasonably indicating that in accordance with the Criminal Code of Ukraine, which was in force in the territory of Crimea at the time the convicted committed the crime, the actions of the Karelins would be subject to qualification under Part 1 of Art. 122 of the Criminal Code of Ukraine - intentional infliction of moderate bodily harm, which did not provide for such a qualifying feature as the commission of a crime by a group of persons.
A comment
Sanctions for infecting healthy people with such a dangerous disease as HIV are prescribed in Article 122 of the Criminal Code of the Russian Federation. It's hard to disagree with 2022's comments here. After all, infected people, who know in advance about their illness, are obliged to exercise caution during close contacts with citizens who are not carriers of this virus. In addition, HIV-positive people must warn their partners in advance that they have such a fatal disease. Otherwise, the latter must be held accountable for their actions to the fullest extent of the current law.
On practice
Anything can happen. In addition, law enforcement officers are not always able to prove that a person was infected with HIV within the walls of a medical institution through a blood transfusion or from a specific citizen who is a carrier of the virus. Thus, judicial practice under Art. 122 of the Criminal Code of the Russian Federation is quite diverse.
In certain situations, citizens live with one partner for a long time, and then learn about the latter’s terrible diagnosis. Who will be to blame here? Of course, the partner who became infected with HIV and transmitted the virus sexually to another person. But it can be very difficult to prove the fact that this particular person did this, especially in cases where people used drugs together for a long time and led an immoral lifestyle.
Currently, the danger of HIV infection awaits people almost everywhere. For example, in beauty salons, if a master does a manicure with unprocessed tools or tattoos a person’s body. Therefore, there is risk everywhere.
But the worst thing is that in practice there are also cases where people were infected with HIV in medical institutions. If a hospital employee took blood with non-sterile instruments, and especially with a syringe that was already in use, then he may face liability under Part 4 of Article 122 of the Criminal Code of the Russian Federation. Practice also shows that HIV infection often occurs at stations where blood transfusions are carried out. Because not all health workers treat their duties properly.
Commentary to Art. 122 of the Criminal Code of the Russian Federation
The commented article establishes liability for two independent elements of crime: a) leaving one at risk of contracting HIV infection (part 1) and b) contracting HIV infection (parts 2 - 4).
The object of these crimes are social relations that arise regarding the realization by a person of the natural right to life and health and ensuring the security of these social benefits. This understanding of the object is due to the specifics of HIV infection. In accordance with Federal Law No. 38-FZ of March 30, 1995 “On preventing the spread of the disease caused by the human immunodeficiency virus in the Russian Federation,” HIV infection is defined as a chronic disease caused by the human immunodeficiency virus (Article 1). It is a slowly progressive infectious disease that occurs as a result of infection with the human immunodeficiency virus, which attacks the immune system, resulting in the body becoming highly susceptible to opportunistic infections and tumors, which ultimately lead to the death of the patient.
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According to the preamble to the Federal Law of March 30, 1995 N 38-FZ “On preventing the spread of the disease caused by the human immunodeficiency virus in the Russian Federation,” HIV infection is a disease that is becoming widespread throughout the world, causing severe socio-economic and demographic consequences for the Russian Federation, poses a threat to personal, public, state security, as well as a threat to the existence of humanity, necessitates the protection of the rights and legitimate interests of the population.
NW RF. 1995. N 14. Art. 1212.
When there is a risk of contracting HIV infection, there is a danger of harm to relationships that ensure the safety of life or health; When HIV infection occurs, real harm is done to these relationships.
The objective side of putting another person at risk of contracting HIV infection is expressed by an act in the form of an action or inaction, which in given specific conditions can lead to infection of another person, and if this infection does not occur, then only due to random circumstances or measures taken by the victim or third parties persons. The possibility of committing a crime through inaction is explained by the fact that a number of persons are required by regulatory legal acts not to create a threat of HIV infection. In particular, any person who is a carrier of HIV, in accordance with Art. 13 of the Federal Law of March 30, 1995 N 38-FZ “On preventing the spread of the disease caused by the human immunodeficiency virus in the Russian Federation”, an employee of a medical institution must be notified of the need to take precautions to prevent the spread of the disease and of criminal liability for the spread of the disease. at risk and for infecting another person with HIV infection. In accordance with the Rules for conducting compulsory medical examination for the detection of human immunodeficiency virus (HIV infection), approved by Decree of the Government of the Russian Federation of October 13, 1995 N 1017, employees of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the Government of the Russian Federation, if they are diagnosed with HIV infection, they are subject, in accordance with the legislation of the Russian Federation, to transfer to another job that excludes conditions for the spread of HIV infection. According to Art. 68 Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens of July 22, 1993 N 5487-1 medical and pharmaceutical workers who have committed violations of the rights of citizens in the field of health care due to dishonest performance of their professional duties are liable for harm caused to health, in accordance with current legislation . Failure to fulfill the obligations prescribed by regulations to comply with precautionary rules in order to prevent the spread of HIV infection can be committed both through action and through inaction.
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NW RF. 1995. N 43. Art. 4070.
Gazette of the SND of the Russian Federation and the Armed Forces of the Russian Federation. 1993. N 33. Art. 1318.
The methods of exposure may vary and depend on the mechanism of transmission of HIV infection. Science has established that vector-borne (through bloodsuckers), household (through air, drinking water, food, etc.) transmission of the virus is practically impossible. The leading role in contracting HIV infection is through the contact mechanism of transmission of the pathogen, which can be sexual (the most common) and blood contact (through infected blood, for example, during the transfusion of blood and some of its preparations, during the reuse of infected medical instruments, including syringes and needles, etc.). Another known medical practice is the vertical mechanism of pathogen transmission; for example, it is possible for a healthy child to become infected through the breast milk of a sick mother. Each of them involves its own methods of putting one at risk of infection, which do not affect the qualification of the act (this could be, in particular, sexual intercourse, other actions of a sexual nature, injections, etc.).
It seems that, despite the possibility of transplacental (through the body of a pregnant woman) route of HIV transmission, it cannot be brought to criminal liability under Art. 122 of the Criminal Code of the Russian Federation, an infected woman who becomes pregnant or gives birth to a child, since current legislation does not provide for HIV infection as an indication for performing an artificial abortion operation for medical or social reasons.
The elements of the crime in question are formal; it is considered completed from the moment the victim is placed in danger of contracting HIV infection.
The subjective side of knowingly putting another person at risk of contracting HIV infection is characterized by guilt in the form of intent. By committing an act, the subject is aware of the social danger of putting another person at risk of contracting HIV infection. The deliberate nature of guilt is emphasized by the legislator, pointing out the knowledge of placing in danger of infection. Knowingly means that a person deliberately violates the precautionary rules, knowing for certain about the possibility of infection of the victim. In a situation where the subject observes all precautions, liability under Part 1 of Art. 122 of the Criminal Code of the Russian Federation is excluded.
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Science has expressed the opinion that the subjective side of deliberately putting one at risk of contracting HIV infection is characterized by indirect intent or criminal frivolity. See: Commentary on the Criminal Code of the Russian Federation / Under general. ed. Yu.I. Skuratova, V.M. Lebedeva. M., 1996. P. 277 (author - Professor E.F. Pobegailo).
The subject of the crime provided for in Part 1 of Art. 122 of the Criminal Code of the Russian Federation is a sane individual who has reached the age of sixteen. They can be either an HIV-infected person or a healthy person, for example, an employee of a medical institution. The subject of the crime is common.
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Science has expressed the opinion that the subject of the crime provided for in Part 1 of Art. 122 of the Criminal Code of the Russian Federation, are only HIV-infected and HIV-infected patients. See: Criminal Law Course. Special part: Textbook. for universities / Ed. G.N. Borzenkova, V.S. Komissarova. M., 2002. T. 3. P. 197 (author - associate professor V.I. Zubkova).
The objective side of infecting another person with HIV infection (parts 2 - 4 of Article 122 of the Criminal Code of the Russian Federation) is characterized by an act in the form of action or inaction, a consequence in the form of infection of the victim and a causal relationship between them. These crimes are material and are completed from the moment the consequences occur in the form of infecting another person with HIV infection. Infection in this case means infection of the victim, regardless of how long the incubation period of the disease lasts and when the disease caused by HIV occurs.
Methods of infection may vary and depend on the mechanism of transmission; they largely coincide with ways of putting people at risk of contracting HIV infection.
An obligatory element of the objective side is a causal connection. If it cannot be established whether the victim became infected precisely from the actions or inaction of the accused, the latter may be held accountable under Part 1 of Art. 122 of the Criminal Code of the Russian Federation for knowingly putting in danger of contracting HIV infection.
The subjective side of the crimes provided for in Part 2, Part 3 of Art. 122 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent, as well as negligence in the form of criminal frivolity.
The subjective side of the crime provided for in Part 4 of Art. 122 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent or negligence in the form of frivolity or negligence.
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At the same time, the most widespread opinion in science is that this crime can only be committed through negligence. Allowing a deliberate form in the composition provided for in Part 4 of Art. 122 of the Criminal Code of the Russian Federation, we proceed from the interpretation of Part 2 of Art. 24 of the Criminal Code of the Russian Federation, and also from the fact that the rule on liability for contracting HIV infection is special in relation to the rules on liability for causing harm to health.
The subject of crimes provided for in Part 2, Part 3 of Art. 122 of the Criminal Code of the Russian Federation is a sane individual who has reached the age of sixteen and is aware of the presence of HIV infection. The subject is special.
The subject of the crime provided for in Part 4 of Art. 122 of the Criminal Code of the Russian Federation, - special; a person obliged by virtue of his profession or position to comply with certain professional safety standards.
In Part 3 of Art. 122 of the Criminal Code of the Russian Federation contains a qualified element of infecting another person with HIV infection by a person who knew about the presence of this disease. Signs that increase liability are the special characteristics of the victim: the commission of a crime against two or more persons or the commission of a crime against a known minor.
In the note to the commented article, the law provides for a special non-rehabilitative basis for exemption from criminal liability for committing crimes under Parts 1 and 2 of Art. 122 of the Criminal Code of the Russian Federation. The conditions for exemption from liability are:
a) special characteristics of the subject of the crime, which is only an HIV-infected person; exemption from liability of healthy persons (employees of medical institutions) on the basis of the note in question is impossible;
b) timely, i.e. committed before the perpetrator’s actions, warning the victim about the presence of the perpetrator’s infection and the danger of contracting HIV infection;
c) voluntary (i.e., consciously and explicitly expressed without coercion, violence or deception) consent of the victim to commit actions that create a risk of contracting HIV infection.
According to the literal interpretation of the note, exemption from criminal liability in the presence of the specified conditions is the responsibility of the law enforcement officer. A person is exempt from liability on the basis of this norm, regardless of what the relationship between the perpetrator and the victim is after the commission of the crime (friendly or conflicting).
