Criminal offense of HIV infection transmission

Abstract

Given that AIDS is an incurable, deadly disease that can be prevented by simple preventive measures, the intention of the Serbian legislature to make the transmission of HIV infection a criminal offense is justified. However, infection with HIV represents a specific disease, which makes the criminal act of transmitting infection with HIV specific too. For the crime to be prescribed adequately, it is first necessary to understand the nature of the disease, the ways of its transmission, and also the psychology of the infected person, that is, the potential perpetrator. The current legal text shows that the legislator has not fully coped with this challenge. In the current legal text that prescribes the criminal offense of transmitting infection with HIV, there are certain shortcomings that we must point out. First of all, the legislator failed to foresee the possibility of punishing persons who knowingly transmit HIV infection to others, even though they are not infected themselves, but this form of offense was foreseen only for HIV-positive persons. Then, the legislator foresees the occurrence of the qualifying circumstance only for the act from paragraph 3 of Art. 250, and not for the offense from paragraph 2 of the same article, although death occurs in all cases when HIV infection reaches the terminal stage. Also, the position that prescribes the negligent form of the act is vaguely formulated and leads to confusion in which situations the act can have a negligent form. The way in which the criminal offense is currently prescribed makes it almost impossible to prove the connection between the action and the consequence, and therefore difficult to prove the guilt of the perpetrator, as evidenced by the fact that in 15 years there have been only two convictions for this crime. The (un) achieved results speak in favour of the fact that it is not enough to just prescribe a criminal offense, but that the problem of criminalizing HIV transmission must be approached in a different and systematic way.