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known each other since childhood. Sheila went on to college when Benny became self-employed.
Benny would help Sheila financially since university demands were high. She needed bus fare to and fro university, money to buy books, cash for rentals since the halls of residence were closed. They both hailed from Gweru and this meant Sheila looking for rented accommodation since she was in Harare for her college semesters.
This was the era when the Zimbabwean economy took a nosedive and Benny took to cross-border trading. Whatever was in demand back home he would bring for resale.
Speaking recently, Benny said he still does not understand what other needs that he failed to provide for his lover then that could have seen her having a fling with a sugar daddy.
“Sheila was comfortable, more than comfortable when the majority of students and the general populace was living below the poverty datum line – she had all the necessities,” said Benny with a sad tinge in his voice.
Benny said he suspects his wife just gave in to peer pressure or maybe she had a weakness for good living. He said this now makes it difficult for him to trust his wife now that they are married.
Benny said they lost their baby in infancy. Benny Junior developed boils all over the scalp and he was admitted into hospital for four days.
He said it was heartbreaking to see such a young life wired to drips all over the head. The infant did not make it and he died before the dry blood test samples taken had come back from the laboratory.
The nurse attending to their child had suggested they too take an HIV test and when they did, they tested HIV positive.
Benny said he was devastated. He had never had any sexually encounter with anyone besides his wife and this left him with more questions.
It was only after the death of the baby that the wife confessed to all the escapades that she had taken when at college. She said she needed to make ends meet but Benny refuted this since he provided more than what she needed.
Benny said he is committed to his wife and so will remain married. Sheila, on the other hand, believes that it was her one and only sugar daddy since he had two other girlfriends at the college and a wife at home.
The two college mates had gone to settle down with their respective partners. The two ladies had also been unfortunate in that they had also lost their babies in infancy. Sheila therefore suspected that the sugar daddy could be the source of infection for the three ladies, but that cannot be proven.
Benny had suggested Sheila takes her ex-sugar daddy to task for deliberately infecting her.
This now sounds achievable but is an uphill task.
It is a crime punishable up to a period of 20 years in Zimbabwe for someone to deliberately infect someone.
Section 79 of the Criminal Law Codification and Reform Act Chapter 9:23 criminalises deliberate or negligent transmission of HIV.
It says:
1. Any person who
a. knowing that he or she is infected with HIV, or
b. he or she is infected with HIV.
Intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that person, and shall be liable to imprisonment for a period not exceeding 20 years.
2. It shall be a defence to a charge under sub-section (1) for the accused to prove that the other person concerned
(a) knew that the accused was infected with HIV
(b) consented to the Act in question, appreciating the nature of HIV and the possibility of becoming infected.
On the face of it this appears to be a very simple piece of legislation to deal with. However, the prevailing circumstances of each case and those in the country potentially open up a Pandora’s box, as will be argued.
Recently, the Press has been awash with trials of people accussed of deliberately transmitting HIV to their sexual partners .
The problem with the crime is as follows, let’s have Scenario A, where a young lady claiming to have been infected by her partner, how do you go about proving such.
If the accused’s status is well known as being HIV positive while the young lady can prove that she was recently tested as being HIV negative before indulging in sexual intercourse with her partner the courts have a fairly easy task to deal with.
However, that is not always the case. Assuming the “victim” who claims to have been infected had no proof that she/he was recently negative and that it is accused who actually gave her the virus.
Suppose the female’s partner starts making counter-accusations that it is actually she who infected him how does this go?
I am told that in developed countries there is machinery for detecting the possible source of the virus between two partners thereby showing who infected who – but is that the case in our country?
I would like to assume that at present in Zimbabwe unless their viral loads are at significantly different stages it would be rather difficult to tell who infected who, unless you can afford to go abroad.
Then there is a scenario of cross-infection. You may have a situation of cross-infections and one of the partners then reports the case. Who then is to be taken to task?
This brings to the fore the case of a Mufakose woman who was on active ART and was a member of a support group. Her HIV status was public knowledge. She had an affair with a man who ended up accusing her of deliberately infecting him.
Rosemary Jaboon, aged 40, was dragged to court by her former lover who claimed that she deliberately infected her with the virus.
The case was heard before Harare magistrate Mr Clever Tsikwa and it made interesting following.
In making the ruling, Mr Tsikwa said “the State had to prove (1) that the accused person knew that she was HIV positive and (2) that she deliberately infected the complainant.
Rosemary escaped conviction because the complainant was not a credible witness and the manner in which he gave evidence left a lot to be desired. The complainant had a girlfriend and child who too had died from HIV-related illnesses it was noted.
The magistrate had this to say: “An accused person can escape conviction if it is proved that the complainant knew that the accused person was infected with HIV and that he consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.”
” . . . in view of the foregoing, it is my finding that the evidence led in this (case) falls far short of proving beyond reasonable doubt that the accused deliberately infected the complainant with HIV, she is therefore not found guilty and acquitted.”
When two consent to have unprotected sex, and in this case they are both adults, this makes it difficult for one to turn around and accuse the other of deliberately infecting the other.
The talking point then becomes intentionally or is it negligence on both parts. The onus lies on each and everyone to protect yourself. Those HIV positive must not go on an onslaught thinking that they too can get away with it, on the other hand, whether you know your status or not, protection must be your guard. It can cost you your life if you already HIV positive and sleep around with the intention of infecting your partners.
In the end, you may get all the communicable diseases and cross infections are difficult to treat, while some are drug resistant.
Another disturbing case which is different is in the case of a mother who knows that she is HIV positive and refuses to take precautions to try and eliminate the chances of transmission from mother to child. If that happens, would someone be able to sue the mother on behalf of the baby? What of a scenario where the mother takes the necessary measures by registering at a PMTCT programme and is put on the more officacious regimens and still have baby infected would that still be deliberate or accidental?
The law has to take a point that it is women who carry the term (pregnancy) and this does not protect women, it rather makes women more vulnerable to be prosecuted as they stand blamed for vertical transmission. Women need to be empowered and have a say over their reproductive health.
Like any new law, it has a long path to traverse as the nation debates the pros and cons. Laws can be amended and this too applies to the law on HIV.
Any reasonable person would not deliberately infect another. What I see is people getting reckless and negligent and in the end pointing fingers at each other and shout: “deliberate infection”. The power not to be infected lies in you.
May you get understanding.
Until then, God bless.
Online Reporter