By Miriam Tose Majome
SECTION 79(1) of the Criminal Law Codification and Reform Act states:
“Any person who, knowing 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.’’
This provision shall be repealed when the Marriage Laws Amendment Bill is signed into law. The Bill has already been passed by Parliament. It means wilful, ie deliberate transmission of HIV- will no longer be considered a criminal act and there will be no punishment for it.
The criminal enactment was instituted in the 1990s at the height of the HIV/ Aids pandemic. It was estimated then that a quarter of the population was infected with HIV and that up to 2000 people were dying from Aids every week.
The erstwhile Minister of Health the late Timothy Stamps later admitted that it had been a deliberate alarmist government policy to scare people into behavioural change.
The majority of people who contracted HIV in the 1990s died of Aids before anti-retroviral treatment (ART) was developed and became as widely available as it is now.
A positive HIV test result meant a sure death sentence in a very short space of time. The 90s was a time of great panic and alarm. Stigma ruled the day and HIV infected people were generally feared. It was generally believed that they went around infecting other people purposefully.
Criminalising wilful HIV transmission was, therefore, considered, one of the ways to curb its spread and control infected people.
In 2019 Ruth Labode the Health and Child Care Parliamentary Portfolio Committee chair disclosed that she had supported the criminal sanction when it was instituted but had since changed her mind.
She said new knowledge and approaches to the management of HIV had influenced new policies and attitudes towards HIV and its transmission.
She said there was no scientific evidence which supported that HIV-positive people spread it to other people on purpose. She said there was no link between the marked decline in infection rates and the criminal provision.
Labode correctly noted that women were at a greater risk of prosecution under the provision because they are less assertive in sexual matters than men. Supporters of decriminalisation cited that the law aided stigmatisation against HIV-positive people.
The standard of criminal charges is that the State has to prove the accused’s guilt beyond a shadow of doubt. For a conviction there must be no doubt that the accused committed the crime and that they intended to commit the crime.
Deliberate transmission of HIV is a very difficult crime to prove and ascertain which of the partners infected the other let alone prove the intention. In terms of the rules of evidence it is very difficult to prove wilfulness beyond reasonable doubt.
Guilt in such cases will more likely be assessed on a balance of probabilities instead of beyond reasonable doubt as is the criminal law standard.
All the reasons proffered for decriminalisation are solid and credible but there are some very serious problem areas that will always remain.
Despite Labode’s statement there is overwhelming evidence that some HIV-positive people do, indeed, deliberately spread it, to non-infected people.
To think and say that there are no people who deliberately spread HIV is very optimistic but it is wishful.
It is easy to get carried away because data shows infection and prevalence rates have been falling consistently over the years.
In 2014 a 39-year-old man Nyengedzai Bheka was sentenced to 15 years imprisonment by a Chinhoyi magistrate for wilfully transmitting HIV to a 17-year-old girl who was most likely a virgin.
The magistrate likened the act to a death penalty for the violated girl. Despite only single witness evidence the court found it easy to establish the man’s guilt because of the age of the girl.
Decriminalising it in toto without addressing the sticking areas is unhelpful. The problem of vaginal, sexual cleansing was seemingly swept under the carpet yet it is a very real and serious problem.
Vaginal or sexual cleansing is the belief that having unprotected sex with a virgin cures Aids or cleanses HIV.
It is practised by both men and women. Infected men abuse and rape virginal women and girls and infected women abuse young boys who have not had sexual intercourse.
It was a very popular belief and practice in the 90s at the height of the HIV/Aids crisis and it persists to date because beliefs and superstitious practices never disappear overnight. The belief and practice are alive in the community.
Without legal sanction against deliberate HIV transmission it is not clear what will happen to infected people who wilfully practise vaginal/sexual cleansing.
Some perpetrators may be spurred on knowing that at worst they will only be charged with having sex with a minor and will get away with the deliberate transmission of HIV yet that would have been the sole motive.
It is worth noting that virgins are not all minors. Adult men and women without sexual experience are also abused and purposefully exposed and infected with HIV but as things stand they will no longer be protected by the law.