Current Problems of HIV Transmission Classification

Abstract

The paper presents the criminal law characteristics of HIV infection with an emphasis on law enforcement problems. It has been established that article 122 of the Criminal Code of the Russian Federation, which provides for liability for HIV infection, contains three main bodies of a crime that differ in almost all the elements. The objective side of putting a person at risk of being infected with the HIV (part 1 of article 122 of the Criminal Code of the Russian Federation) consists in committing an act creating a real and immediate threat of transmitting HIV to another person, if the disease does not occur due to circumstances beyond the control of the guilty party. In this regard, the criminal liability of an HIV-positive person with an undetectable amount of the virus is impossible to arise, since such a person is not able to pass the disease on to another person. This conclusion should be taken into account when deciding on the criminal liability of a person who correctly used proven means for preventing HIV infection (condoms, pre-exposure prophylaxis). The bodies of the crimes provided for in parts 2 and 4 of Art. 122 of the Criminal Code of the Russian Federation belong to materially defined crimes, since, under the law, criminal acts must lead to the infection of another person with the HIV. These bodies differ in the substance of the acts. According to part 4, the act consists in the improper performance by a person of his professional duties, which implies the possibility of committing the specified crime through inaction. The act provided for in part 2 can only be expressed in active actions leading to transmission of the HIV to the victim. The presence of a causal relationship between such actions and the consequences may be evidenced by the results of phylogenetic analysis, which, in turn, makes it possible to judge on the presence or absence of an epidemiological relationship.