Chile - AI-use Aggravating Circumstance (Boletín 16021-07)

Overview

Boletín N° 16.021-07 is a motion-initiated bill presented to the Chilean Congress on 13 June 2023 that seeks to amend the Penal Code by inserting a new aggravating circumstance for crimes committed by means of artificial intelligence. The proposers stress the technology's rapid diffusion and the specific risks posed when AI is used to plan, augment, or commit offences that harm persons or public order. The primary legislative record and the submitted text are published on the official Cámara de Diputadas y Diputados project page, and the formal bill document (PDF) containing the explanatory memorandum and single article is available at the Cámara's document repository: Boletín N° 16.021-07 (PDF). The Senate communicated the initiative publicly on 14 June 2023 via its official site: Senate press release.

Definitions

The bill itself proposes a short textual amendment and does not include a dedicated definitions section. The submitted explanatory text references Chile's National Policy on Artificial Intelligence (MinCiencia) and OECD definitions to describe AI as computational systems capable of making predictions, recommendations or decisions for defined objectives. For application, courts and practitioners will need to clarify operational definitions of "inteligencia artificial" and "use or through" (por medio de) in evidentiary terms — whether this covers automated decision systems, generative models, deepfakes, automated orchestration, or other algorithmic tools. The legislative dossier does not expressly limit the concept to specific models or capabilities; therefore, implementing authorities will likely rely on technical guidance from expert agencies and forensic practice when interpreting the scope.

Governance and Institutional Framework

The bill is a penal amendment and does not establish a new regulatory agency. Its execution implicates existing institutions of the justice system: the Public Prosecutor’s Office (Ministerio Público), the courts (tribunales), Public Defender and private defense counsel, and forensic services (Servicio Médico Legal and other technical units). Policy-level coordination with the Ministry of Science, Technology, Knowledge and Innovation (MinCiencia) is referenced in the bill's rationale because the Ministry's National AI Policy is cited as background. The official parliamentary record also notes that the initiative will be examined by the Chamber's and Senate's constitution/justice committees; the draft is therefore subject to legislative amendment, committee reports and potential indicaciones. Operational responsibilities created by the bill’s effect (if enacted) would include evidence preservation obligations, technical forensic analysis, and potential demands on prosecutorial capacity to investigate algorithmic involvement. Courts will be required to evaluate whether an aggravating circumstance is established for sentencing purposes, applying existing procedural rules and evidentiary standards found in Chilean criminal procedure codes and the Penal Code's Article 12 framework. (See the legislative dossier at Cámara project page and the submission PDF: Boletín N° 16.021-07 (PDF).)

Key Focus Areas

The draft directs attention to several cross-cutting criminal-law issues. First, it seeks to make clear that the qualitative impact of AI on the commission of offences — such as scale, automation, enhanced deception (e.g., deepfakes), remote orchestration, or sophisticated targeting — may increase culpability and thus should be treated as an aggravating circumstance. Second, it raises evidentiary and technical challenges: identifying AI involvement may require digital forensics, provenance analysis, model-output attribution and cooperation with technical agencies. Third, the bill implicitly interacts with privacy and data-protection domains: crimes facilitated by AI often rely on large-scale data processing, potentially implicating data-protection rules and administrative oversight. Fourth, it bears on fundamental-rights protections: judges must weigh the aggravating circumstance against constitutional and procedural guarantees, ensuring that reliance on algorithmic evidence follows standards of reliability and defense rights. Fifth, in terms of enforcement, the proposal signals a policy preference for deterrence by increasing sentencing consideration where AI has been used, but it does not prescribe specific sentencing increases or administrative sanctions, focusing instead on judicial discretion within existing frameworks. The bill’s explanatory memorandum references Chile’s AI policy and comparative international developments to justify applying criminal-law responses to malicious AI-assisted conduct (bill PDF).

Implementation Framework

Because the submitted text is a short penal amendment, implementation would be effected through normal criminal investigation and adjudication processes. Prosecutors would need training and guidance to identify and plead the aggravating circumstance and to assemble technical evidence; courts would need familiarization with AI-related expert reports and standards for admissibility and weight. Inter-institutional coordination could be formalized by secondary measures (protocols, guidelines, memoranda of understanding) among the Public Prosecutor’s Office, police cyber units, forensic services, the Ministry of Justice and the Ministry of Science. The Ministry of Science’s AI policy apparatus (and any national AI center such as CENIA referenced in that policy) could play an advisory and technical-support role. The bill as drafted does not allocate budgetary resources or create enforcement units; implementing bodies would need to seek administrative resources and specialist hiring/training to operationalize the change in sentencing practice.

Monitoring and Evaluation

Monitoring adoption and effects would require collecting case-level data on charging decisions, sentencing outcomes, and the frequency with which the AI-use aggravating circumstance is alleged and proven. The judicial statistics services (Corte Suprema / Poder Judicial statistical offices), the Public Prosecutor’s Office case management units and the Ministry of Justice could produce periodic reports. Because the bill itself contains no explicit monitoring mandate, evaluation will depend on voluntary or administratively directed data collection and inter-agency reporting. Effective evaluation metrics would include: number of prosecutions alleging AI use, conviction rates when AI is alleged, sentencing differentials where the aggravating circumstance is applied, and identified operational bottlenecks (forensics, evidentiary disputes, resource constraints).

Penalties, Liability, and Appeals

The bill creates an aggravating circumstance to be considered under Article 12 of the Código Penal; it does not prescribe a fixed increase in statutory maximums. As a consequence, any change in sanctions will be realized through judicial application of aggravation factors at sentencing within existing penalty bands. The text therefore centralizes decision-making with judges but leaves open appeal pathways within ordinary criminal appellate procedure. Defence counsel may contest the factual finding that AI was used or its causal role; appellate courts will likely be called upon to review evidentiary sufficiency and the proper legal characterization of AI use as an aggravant. The absence of quantitative sentencing rules means that appellate jurisprudence and sentencing guidelines (if later issued) will be critical to harmonize outcomes and to guard against disproportionate penalties.

Relationship to Other Instruments

The proposed amendment is narrowly penal in nature and is meant to complement existing and prospective instruments rather than to replace them. The bill references Chile’s National AI Policy (MinCiencia policy) as contextual background. It also intersects with Chile’s data-protection framework (personal data laws and processing rules), the corpus of computer-crime and cybercrime statutes, and any sectoral AI regulations that may emerge in the future. Where sectoral regulations establish conduct standards or safety requirements (for example in finance or health), those rules could be relevant to proving culpability or negligence in AI-facilitated offences.

International Alignment

The bill’s rationale explicitly references international regulatory discussions, including the European Union’s experience with AI regulation and OECD definitions, as comparative anchors. By targeting the criminal-law consequences of malicious AI use, the draft follows a policy trend present in several jurisdictions that aim to deter harmful applications of AI (including deepfakes, automated fraud, and large-scale disinformation). However, because it is a penal augmentation rather than a full AI regulatory framework, alignment will be at the level of shared policy goals (deterrence, victim protection) rather than harmonized technical standards. Implementation may benefit from international cooperation on digital-forensics best practices and mutual legal assistance in transnational AI-assisted crimes.

Implementation Timeline

Sources and References