SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

jurisdictions. Nepal, a country without colonial burden, does not have a law unambiguously
punishing consensual same sex sexual conduct, yet (as described in Chapter 1 earlier) it’s
Supreme Court has clearly enunciated the right to equality for all persons irrespective of
gender identity or sexual orientation, thereby making any potential interpretation of law to
criminalize same sex sexual conduct irrelevant. 147 In this regard, Thailand has progressed
significantly from de-criminalisation to anti-discrimination laws. As noted in Chapter 1,
although the attempt to have sexual orientation included in the new Thai Constitution as a
specific prohibited ground of discrimination did not succeed, the note of the Constitution
Drafting Committee specifying that this would be covered by the ground of ‘sex’ and the
amendments to the Thai criminal law to recognize same-sex sexual assault is testimony to the
progressive trend in Thai law in recognizing and enforcing Lesbian, Gay, Bisexual,
Transgender and Intersex rights.
2.2 Criminalization of (intentional) transmission of HIV
India, Bangladesh 148 and Sri Lanka 149 have similar provisions in their Penal Codes related
to spreading diseases dangerous to life. While these laws do not specifically cover the
intentional transmission of HIV, they punish the unlawful, negligent or malignant spread of
disease. The Indian law is quoted below:
Section 269, Indian Penal Code: “Whoever unlawfully or negligently does any
act which is, and which he knows or has reason to believe to be, likely to spread
the infection of any disease dangerous to life shall be punished with
imprisonment of either description for a term which may extend to six months, or
with fine, or with both.”
Section 270, Indian Penal Code: “Whoever malignantly does any act which is,
and which he knows or has reason to believe to be, likely to spread the infection
of any disease dangerous to life, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with
both.”
Judicial precedent has not interpreted these provisions to make clear for instance, whether a
person can consent to being exposed to a disease dangerous to life and whether taking
precautionary measures, such as using condoms in the case of safer sex practices in the
context of HIV would be considered to be mitigating factors.
Nepal amended its rape laws through the omnibus Act to Amend Some Nepal Acts for
Maintaining Gender Equality, 2006, whereby it added a clause to its rape provisions, which
punishes any person who rapes another having the knowledge that he has been infected with
HIV, with an additional one year imprisonment over the sentence imposed for the rape
conviction. 150
Thailand and Indonesia appear to have no laws on preventing the spread of diseases.
147 Sunil Babu Pant v Government of Nepal, Writ No. 917 of the year 2064 BS (2007 AD), Supreme Court
Division Bench, 2007. The authors have relied on an English translation by the National Judicial Academy,
Nepal in the NJA Law Journal 2008 available at http://njanepal.org.np/Anex_2.pdf.
148 Sections 269 and 270, Penal Code, 1860 (Bangladesh)
149 Sections 262 and 263, Penal Code, 1883 (Sri Lanka)
150 Section 12, An Act to Amend Some Nepal Acts for Maintaining Gender Equality, 2006
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