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HIV-positive woman breastfeeds neighbour’s baby

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High Court Judge President George Chiweshe, sitting with Justice Charles Hungwe, yesterday quashed a 10-year prison term that had been imposed on an HIV-positive woman, who had been convicted of breastfeeding her neighbour’s 10-month-old baby in January last year.

High Court Judge President George Chiweshe, sitting with Justice Charles Hungwe, yesterday quashed a 10-year prison term that had been imposed on an HIV-positive woman, who had been convicted of breastfeeding her neighbour’s 10-month-old baby in January last year.

BY CHARLES LAITON

In a landmark ruling, the two judges concurred that section 79(1) of the Criminal Procedure and Evidence Act, which criminalises deliberate transmission of HIV through sexual intercourse, did not criminalise deliberate transmission of HIV by breastfeeding.

The judges said, considering the section under which a Juru woman had been charged, the legislature did not canvass the issue of breastfeeding as an offence.

“If the legislature intended to include deliberate transmission of HIV through breastfeeding, it was supposed to include it, but as it stands, section 79(1) only applies to sexual intercourse,” the court said.

Justice Chiweshe said the court was not condoning the behaviour of the appellant (HIV-positive woman), but what she did, under the section she was charged, did not constitute an offence.

According to court papers, the woman (name withheld) operates a shop at Juru Growth Point, while the complainant in the matter is her neighbour’s baby.

Wooden justice gavel and block with brass

The court heard that the incident leading to the woman’s prosecution occurred sometime in January 2013.

Prosecutor Editor Mavuto alleged that, on the day in question, the HIV-positive woman visited the baby’s mother, her neighbour, intending to discuss how they were going to settle a water bill at their premises.

The court heard the baby’s mother left her child in the dining room with the woman and proceeded to the corridor to prepare bathing water for the infant.

The court was told, the HIV-positive woman took the baby and placed her on her lap and started breastfeeding it, only to be caught red-handed by the mother when she returned.

The baby’s mother snatched her child away and when she asked the woman about her HIV status, the latter said she was negative.

The baby’s mother reported the matter to the police, leading to the woman’s arrest and when she was taken for an HIV test at St Paul’s Musami Hospital, she was diagnosed HIV positive.

According to the hospital records, the woman had tested HIV positive sometime in March 2012 and when she allegedly breastfed the toddler she knew her status.

When the baby and her mother were later tested for HIV, they were both negative.