It’s a well-known indisputable fact that the prevalence of HIV in South Africa is among the many highest on the planet. A lesser-known truth is that folks dwelling with HIV will be charged with tried homicide for exposing others to or spreading HIV, even if dwelling with HIV is not a ‘demise sentence’ as a result of availability of antiretroviral remedy.
It’s controversial whether or not the statutory definition of rape additionally criminalises this. There’s, nonetheless, at the least one case the place somebody has been charged with rape beneath false pretences for allegedly exposing or transmitting the virus to their sexual companion.
For context, you will need to notice that folks dwelling with HIV who’re on antiretroviral remedy and who’ve undetectable viral hundreds can’t transmit HIV. This comparatively latest scientific discovery has profound implications for such instances.
Tried homicide for exposing others to/transmitting HIV
The criminalisation of each publicity to and transmission of HIV relies on the frequent regulation offence of tried homicide. In South African regulation, the best way during which tried homicide is construed signifies that an individual is responsible of tried homicide the place, by means of their conduct, they’ve taken adequate preparatory steps in direction of the fee of the offence of homicide despite the fact that the meant consequence, demise, doesn’t in truth outcome. For example, if individual “A” shoots individual “B” with a gun, and narrowly misses their coronary heart or very important organs, individual “A” can be responsible of tried homicide if individual “B” doesn’t die from the gunshot. Within the case of HIV, it signifies that in our regulation the mere publicity to HIV, even within the absence of precise transmission, is handled the identical because the precise transmission of HIV for the needs of an tried homicide conviction.
A key premise within the logic behind using the crime of tried homicide to criminalise HIV publicity and transmission is the concept HIV quantities to a method to trigger the demise of an individual. The way during which this logic is carried by means of in our precedent is that HIV, as a virus that’s solely able to being handled and never cured, has the impact of lowering the lifespan of an individual dwelling with it (though it needs to be famous that lately folks dwelling with HIV who take antiretroviral remedy have primarily regular life expectancy).
Within the 2013 excessive courtroom case of State v Phiri, this premise fashioned the idea for a conviction on a cost of tried homicide. Briefly, the info are that the accused, who knew himself to be HIV constructive, on two events had unprotected sexual activity with the complainant, whom he knew to be HIV unfavourable, regardless of her requests for him to put on a condom. The complainant subsequently examined constructive for HIV. The courtroom took judicial discover (that’s, accepted as truth within the absence of proof), the premise that HIV has no treatment and an an infection with the virus is more likely to result in a decreased life expectancy. Accordingly, for a conviction of tried homicide, it was adequate to determine that the accused, realizing he was HIV constructive, had sexual activity with the complainant, whom he knew to be HIV unfavourable, with out taking measures to forestall transmission.
Rape beneath false pretences for deceptive others about HIV standing
The Felony Regulation (Sexual Offences and Associated Issues Act) criminalises rape, which it loosely defines because the illegal and intentional sexual penetration of 1 individual by one other individual with out consent. Within the Act, consent is outlined as voluntary and uncoerced settlement. The Act offers that consent will be eroded the place the sexual act (together with sexual penetration) is dedicated beneath false pretences or by fraudulent means akin to when one individual misleads one other about their identification or the character of the act. This isn’t a whole checklist of things that may erode consent. In different jurisdictions like Canada, it has been argued that deceptive one other concerning one’s HIV standing can represent false pretences, which erodes consent.
The expanded statutory offence of rape was one of many reforms within the overhaul of our sexual offences regulation by means of the Felony Regulation (Sexual Offences and Associated Issues). At frequent regulation, it was recognised that an error concerning one other’s identification or the character of the act was able to eroding consent to intercourse.
A technique during which the Act departs from the frequent regulation lies in the way it leaves open the opportunity of different components – like a possible lack of disclosure of 1’s HIV standing – that may erode or vitiate consent. An analogous method has been taken to the statutory reform of the that means of consent in Canada however within the context of the offence of aggravated sexual assault.
Reconciling public well being with the goals of prison justice
Though there are comparative examples of the criminalisation of HIV publicity and transmission in international jurisdictions, using prison regulation within the regulation of sexual encounters stays a supply of debate for authorized students, public well being specialists, and civil society.
For example, the 2012 United Nations Growth Programme (UNDP) World Fee on HIV and the Regulation advisable that states mustn’t enact HIV-specific legal guidelines that criminalise the publicity, transmission and non-disclosure of HIV, and that states that have already got HIV-specific legal guidelines ought to repeal them. In the identical Fee, it was discovered that states may ‘legitimately prosecute HIV transmission that was each precise and intentional’. In accordance with this place, in July 2021 the UNDP printed Steerage for Prosecutors on HIV-related instances with a purpose to information prosecutors on how to make sure that a human rights-based and evidence-based method is utilized to the distinctive instances involving HIV transmission that’s precise and intentional.
Thus, in keeping with worldwide human rights norms, there’s consensus that overly broad criminalisation of HIV publicity and transmission, which isn’t based mostly on the newest scientific proof, can result in human rights violations that embrace unfair discrimination in opposition to individuals dwelling with HIV.
Felony regulation is designed to make use of state coercion to ban conduct that’s dangerous to the general public curiosity after which to mete out punishment to fulfill the calls for of retribution, rehabilitation, and deterrence. Once we think about these parts in isolation, the criminalisation of HIV publicity and transmission could seem justified when one considers the potential hurt to society if an individual dwelling with HIV knowingly and intentionally engages in dangerous sexual exercise and takes no precautions to restrict the transmission of the virus.
Nonetheless, the aim of prison regulation must be thought of in mild of different necessary components, akin to public well being. There is no such thing as a proof that criminalising HIV publicity and transmission truly deters folks from partaking in dangerous sexual exercise. Actually, it’s strongly seemingly that criminalisation would undo a few of the essential HIV prevention and remedy good points. For example, criminalisation is premised on information of 1’s HIV standing. Criminalisation would then seemingly deter individuals who have no idea their standing from testing for HIV. Along with this, there’s additionally robust proof that a fantastic quantity of people that transmit HIV are literally individuals who’re unaware of their constructive standing, and are subsequently not topic to prison sanction.
Criminalisation can also be more likely to promote a normal mistrust and avoidance of healthcare establishments and suppliers. To keep away from a possible breach of their medical confidentiality, individuals who do find yourself testing for HIV might wish to keep away from being examined by healthcare suppliers at healthcare services as a result of a courtroom can order healthcare employees to reveal affected person data. And people who do check constructive could also be deterred from being on antiretroviral remedy, to keep away from that being proof of their HIV standing. This extends to HIV constructive pregnant ladies who could also be examined in routine pre-natal testing however might select to keep away from being on remedy and could also be criminalised for transmitting HIV to their infants.
All of this critically undermines HIV prevention efforts that encourage everybody to check and, if constructive, to begin antiretroviral remedy instantly. Scientific analysis performed over the past decade has had a vital impression on HIV prevention as we now know that individuals dwelling with HIV who’re on remedy can obtain a decreased or undetectable viral load that considerably limits or eliminates the danger of additional transmission of the virus. This provides to what we have identified for even longer – that folks dwelling with HIV can reside lengthy and wholesome lives when taking antiretroviral remedy.
Criminalising the publicity or transmission of HIV may contribute to elevated stigma in direction of folks dwelling with the virus, which not solely undermines public well being interventions like testing and remedy, however can result in social isolation, financial discrimination, and additional violations of the rights of individuals dwelling with HIV.
In mild of the above, the over-criminalisation of HIV publicity and transmission does extra hurt than good. If criminalisation isn’t an efficient deterrent and it could actually undo a few of the nice strides which have been achieved in HIV prevention and remedy, then what goal does it serve and the way can it’s justified?
*Ndlela is an lawyer at SECTION27.
NOTE: Highlight is printed by SECTION27 and the TAC, however is editorially unbiased, an independence that the editors guard jealously. Highlight is a member of the South African Press Council.
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