guest column: Miriam Tose Majome
THE most topical issue this past week was the announcement by Justice minister of government’s plans to revoke section 79(1) of the Criminal (Codification and Reform) Act, which makes the deliberate transmission of HIV a criminal offence.
The revocation of the provision would be through amending the Marriages Act, which is also up for a number of amendments. The news was greeted with mixed reactions and some of the views are summarised here for those who may have missed the ongoing debates.
Section 79(1) of the Criminal (Codification and Reform) Act states that: “Any person, who knowingly that he or she is infected with HIV, or realising that there is a real risk or possibility that he or she is infected with HIV, intentionally does anything or permits the doing of anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person and shall be liable to imprisonment for a period not exceeding 20 years.’’
The criminal enactment was instituted in the 1990s at the height of the HIV and Aids pandemic when it seemingly threatened to wipe out the entire population. It was estimated then that a quarter of the population was infected with HIV. Up to 2000, many were reportedly dying from Aids every week.
The government later tacitly admitted that there had been a deliberate alarmist approach to scare people into behaviour change. Exaggeration or not, too many people died of Aids needlessly in the 1990s before the anti-retroviral treatment (ART) was established.
Research and knowledge were still very limited and the outcomes of ongoing clinical trials were unknown, especially in this part of the world.
A positive HIV test result meant a death sentence so it was a time of great panic and alarm as stigma also ruled the day. It was common belief that HIV could be transmitted through sharing bathroom facilities or cutlery.
HIV infected people were generally feared and it was believed that they went around deliberately and recklessly infecting other people. Thus the criminal sanction was considered as justifiable to punish them and curb its spread.
Ruth Labode, the Health and Child Care Parliamentary Portfolio Committee’s chair, disclosed that she had supported the criminal sanction back then when it was instituted, but has since changed her mind.
She said new knowledge and approaches to the management of HIV had influenced the change of stance by government. There is no scientific evidence supporting the criminal provision or proof that HIV positive people deliberately spread it to others.
There was also no link between the marked decline in infection rates and the criminal sanction. Labode added that women were at a greater risk of falling foul of law because they were less assertive in sexual matters than men and thus more likely to be prosecuted under the provision.
It is a very difficult crime to prove beyond reasonable doubt and to ascertain which of the partners infected the other. If, for example, one of the partners had a pre-existing medical condition which compromised their immunity, they were the more likely to be prosecuted yet might actually have been HIV negative.
The other party with no visible or identifiable symptoms might actually have been the silent carrier. Another problem is there is no compulsion for the complainant to be tested and prove their positive status to show that, indeed, they were deliberately infected and when?
In terms of the rules of evidence, it is very difficult to prove the wilfulness beyond reasonable doubt. Guilt in such cases will more likely be assessed on a balance of probabilities instead of beyond reasonable doubt, which is the standard for criminal matters.
The court must be 100% convinced that the transmission was deliberate but this is not possible as there are too many grey areas and hanging questions.
The State must prove three things among others, before a successful conviction can be obtained. First, that the accused person knew their positive status; second, that the transmission — if any — was intentional, and third and importantly, that the accused is the one who infected the complainant. But this is impossible to prove as the complainant may have had concurrent sexual partners.
It must also be established that the complainant was HIV negative at the commencement of the sexual relationship with the accused HIV positive partner.
This is impossible to establish with certainty because the accused might not even have been aware of their positive status and so cannot have deliberately infected the other partner.
The court is disadvantaged because it relies heavily on conjecture and hearsay evidence because it is the complainant’s testimony, whether it is truthful or not, upon which the entire case rests.
Therefore, proving the matter beyond reasonable doubt is impossible, as there are too many possibilities which cannot be simply ignored. It must also not be forgotten that such cases typically involve all the high drama and emotions of a romance-turned-sour and the primal urge to fix a former lover.
A further problem with the criminal sanction is that it puts all the responsibility for safe sex in one partner yet both partners are responsible for their own and partner’s safety.
No adult person should give up responsibility for themselves and relegate their health and safety to someone else. The legal provision attempted to cater for this by provisioning for a defence which the accused person could try to rely on, which states that: “It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned knew that the accused was infected with HIV and consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.”
Wilful transmission is extremely difficult to prove between consenting adults, but cannot be convincingly dismissed in cases of statutory rape and sex with minors between 16 and 18 years.
Such cases follow from the commonly held superstition by some people that sex with virgins cleanses infected people. It remains to be seen if the proposals in the pipeline will address this grave issue as the purposefulness and wilfulness in these cases is undoubted.
In 2014, a 39-year-old man Nyengedzai Bheka was given a 15-year prison sentence by a Chinhoyi magistrate for wilfully transmitting HIV to a 17-year-old girl — a virgin most likely. The magistrate likened the act to a death penalty on the violated girl.
Despite only single-witness evidence, the court found it easy to establish the accused’s guilt because of the age of the girl.
Perpetrators may, indeed, be spurred on if the provision is revoked, knowing that in the worst case scenario they would only be charged with having sex with a minor and get away with the deliberate transmission of HIV yet that would actually have been the motive for the misconduct.
This remains a real concern as there is a possibility of a rebound of such cases and it may take us back to a time when the superstitious practice was rife in the onset years of the HIV and Aids pandemic.
We wait eagerly for the Marriage Bill and the proposed amendments to see how genuine deliberate transmission of HIV is dealt with.