Case No. STS 3527/11

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Appellee was diagnosed with HIV in 1994. In 1996, he began a relationship with appellant, during which time he used condoms but did not inform appellant of his HIV-positive status. The condom broke on several occasions, and ultimately appellant became pregnant and HIV-positive, and when she gave birth to their daughter, the daughter also was infected with HIV through vertical transmission from her mother.

In 2006, appellant filed an action against appellee for offense causing injury and offense causing bodily harm for infecting appellant and their daughter with HIV. Appellee was acquitted in the court below, and appellant filed this appeal.

 

 

The Court held that appellee did not have specific intent to harm the appellant because he took recommended medical precautions by using a condom during his relations with appellant. The fact that appellee failed to inform appellant of his condition might have been ethically wrong, but it added nothing to the criminality of his actions.

However, the Court also held that the result (appellant becoming infected with HIV) was not only avoidable but also predictable, and appellee’s behavior had been careless. The Court therefore partially reversed the judgment below, finding the appellee guilty of two reckless offenses and awarded civil monetary damages to the appellant.

“We must begging stating that the failure from Gerardo to communicate his serious and contagious disease to his partner, although it may be subject to condemn from an ethical point of view, does not add nothing to the criminal wrongfulness of his behavior, which shall only consists on the fact that causally infected Araceli and their daughter, with the intention of causing them or omitting the requirable duties of care.” (Page. 4)

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