Transmission of HIV to others: What are the penalties for the offender in Vietnam?

1. Penalties for “transmission of HIV to others” and “deliberate transmission of HIV to others” in Vietnam

Pursuant to Article 148 of the Criminal Code in 2015 (amended in 2017) stipulating penalties for the act of transmission of HIV to others:

- A person who, in the knowledge of his/her HIV infection, deliberately transmits HIV to another person, unless the victim knows the it and voluntarily engages in sexual intercourse, shall face a penalty of 01 - 03 years' imprisonment.

- This offence committed in any of the following circumstances carries a penalty of 03 - 07 years' imprisonment:

+ The offence is committed against 02 or more people;

+ The offence is committed against a person aged under 18, except in the circumstances specified in Article 142 and Article 145 of the Criminal Code in 2015 (amended in 2017);

+ The offence is committed against a woman with the full knowledge of her pregnancy;

+ The offence is committed against the physician or health worker who directly provides treatment for the offender;

+ The offence is committed against a law enforcement officer in performance of his/her official duties or because of his/her official duties.

Pursuant to Article 149 of the Criminal Code in 2015 (amended in 2017) stipulating penalties for the act of deliberate transmission of HIV to others:

- Any person who deliberately transmits HIV to another person in circumstances other than those specified in Article 148 of the Criminal Code in 2015 (amended in 2017) shall face a penalty of 03 - 07 years' imprisonment.

- This offence committed in any of the following circumstances carries a penalty of 07 - 15 years' imprisonment:

+ The offence is committed by an organized group;

+ The offence is committed against a law enforcement officer in performance of his/her duty or because of his/her official duties;

+ The offence is committed against a person under 18;

+ The offence is committed against 02 - 05 people.

+ The offence is committed by taking advantage of the offender's profession;

+ The victim suffers from 31% - 60% mental and behavioral disability because of the offence.

- This offence committed in any of the following circumstances carries a penalty of 12 - 20 years' imprisonment or life imprisonment:

+ The offence is committed against a woman with the full knowledge of her pregnancy;

+ The offence is committed against 06 or more people;

+ The victim suffers from ≥ 61% mental and behavioral disability because of the offence;

+ The offence results in the suicide of the victim.

- The offender might be prohibited from holding certain positions, practicing his/her profession or doing certain jobs for 01 - 05 years.

2. Differences between “transmission of HIV to others” and “deliberate transmission of HIV to others”

Many people may confuse the two offences of "transmission of HIV to others" and "deliberate transmission of HIV to others". Both offences involve deliberately causing the victim to be infected with the HIV virus. However, to differentiate between these two offences, the following factors are considered:

- Objective aspect:

+ Offence of transmission of HIV to others: The act of transmission of HIV to others can be carried out through direct physical contact between the offender and the victim or indirectly through intermediate means, but the material transmitted to the victim must be taken from the offender's body.

+ Offence of deliberate transmission of HIV to others: The act of transmission of HIV to others is carried out through intermediate means, and the material transmitted to the victim is not taken from the offender's body.

- Subjective aspect:
+ Offence of transmission of HIV to others: It is committed by a person who has the criminal responsibility capacity, meets the age requirement according to the law, and is currently infected with HIV.

+ Offence of deliberate transmission of HIV to others: It is committed by a person who has the criminal responsibility capacity and meets the age requirement according to the law.

Therefore, depending on the perpetrator, the severity, the behavior, and the nature of the case, deliberately causing someone to be infected with HIV can prosecuted for the offence of "transmission of HIV to others" or the offence of "deliberate transmission of HIV to others."

3. Judgment on the offence of deliberate transmission of HIV to others in Vietnam

The following is the actual verdict for the crime of intentionally transmitting HIV to others. Please refer to it:

Judgment No. 82/2022/HS-ST dated September 28, 2022, regarding the offence of deliberate transmission of HIV to others:

- Trial level: First instance

- Judicial authority: People's Court of Do Luong District, Nghe An Province

- Quoted content: Nguyen Ba B and Ms. Nguyen Thi L had already been divorced. Later on, B wanted to re-establish a relationship with L, but L did not agree. Therefore, B developed the intention to seek revenge against L. To carry out this revenge plan, the defendant B thought of taking the blood of Ms. Dang Thi L, who was already infected with HIV, and finding a way to introduce it into the body of Ms. Nguyen Thi L, so that she would also be infected with HIV. After obtaining the blood of Ms. Dang Thi L, B drove a motorcycle and waited for Ms. Nguyen Thi L to pass by in order to carry out the act of revenge. Upon discovering Ms. Nguyen Thi L, the defendant chased after her on the motorcycle. When they reached the area in Binh Cat Hamlet, Minh Son Commune, Do Luong District, the defendant accelerated the motorcycle from behind, approached the right side of Ms. Nguyen Thi L's motorcycle, and used his left hand to hold a bamboo tube containing a syringe filled with HIV-infected blood from Ms. Dang Thi L. He stabbed the right buttock area of Ms. Nguyen Thi L with the tube and simultaneously pressed the syringe to inject the blood into her body.

Result: The defendant Nguyen Ba B was found guilty of "deliberate transmission of HIV to others" and sentenced to 38 months in prison.

Please Login to be able to download