LEGAL MATTERS: HIV is a virus not a crime

Coddy Fungai Nyamundanda

In the recent history of HIV and AIDS, there have been reported cases of wilful transmission of HIV.
In Zimbabwe, in terms of Section 79 of the Criminal Law (Codification and Reform Act), it is a crime to deliberately transmit the HIV virus.
The social, physical and economic intricacies of sexually transmitted infections and their close link to sex and sexuality have been an uncomfortable topic of discussion for many generations.
One would have expected the recently held International Conference on AIDS and STIs in Africa (ICASA) to largely focus on this issue.
The above Act is an extraordinary piece of legislation. It doesn’t make it a crime for a person who knows that she/he has HIV to infect another. It makes it a crime for anyone who realises “that there is a real risk or possibility” that he/she might have HIV, to do “anything” that she “realises involves a real risk or possibility of infecting another person with HIV”.
In other words, though the crime is called “deliberate transmission of HIV”, this is a contradiction.
You can commit this crime even if you do not transmit HIV. In fact, you can commit the crime even if you do not have HIV.
You merely have to realise “that there is a real risk or possibility” that you have HIV and then do something “anything” that involves “a real risk or possibility of infecting another person”.
This statute offers a defence when a person really does has HIV. In such a case, if the other person knew this and consented, then the accused is exempted.
In short, this law creates a crime not of effect and consequence, but of fear and possibility. In any event, why would the Act even bless a consenting party to voluntarily agree to have intercourse with an infected person, is that not itself a cause of concern?
The above scenarios show that the transmission of HIV and AIDS are serious concerns to the legal and medical profession and the public at large.
From the onset, it must be understood that if properly applied, the law can be effective in serving its purpose and therefore we should not lose sight of the lawmakers’ intentions when they enacted it.
However, what makes it appear like bad law is the various shortcomings attached to its implementation.
Divergent opinions on criminalisation of wilful transmission of HIV are therefore inevitable. To some, wilful transmission of HIV should be criminalised for the good of society.
To others, a blanket application of criminalisation could cause more harm as it has great potential of further fuelling stigmatisation and discrimination of people living with HIV. Furthermore, there are issues of public health and human rights at stake.
There are uncertainties around what criminalisation of HIV includes and its impact on people living with HIV, their partners and society at large. The question that also arises is whether criminalisation of diseases has worked before.
Even today, public health legislation has criminalised exposure to certain diseases. For instance, Malawi, Zambia and Zimbabwe’s public health legislation have provisions that target sexually transmitted diseases or venereal diseases.
Tanzania and Swaziland are at their draft stages. The very nature of these diseases, and in particular their mode of transmission, has led to what could be described as a witch hunt. The bid to criminalise HIV has even caused some legislations to redefine or expand the definition of existing crime such as rape. Section 3(4) (c) of the draft Offence Act of South Africa coined it “rape” when an HIV-infected person has sexual intercourse with his or her partner without informing them of his or her sero-status.
ln 1997 for example, American Nuishawn Williams admitted to having had unprotected sexual intercourse with several women, knowing that he was infected with HIV. He received a four-to-12-year sentence. The case mentioned above clearly shows that the defendant was fully aware of his status and had the intention of transmitting the virus, either via sexual contact or injection.
Several arguments make the laws dealing with the pandemic seem dubious.
The criminalisation of HIV raises more questions than answers. How does one prove whether or not he/she was already infected with HIV before the sexual act with the accused? How does one prove the burden of proof if the accused pleads not guilty since the necessity of proof always lie with the person who lays the charges? What about partners who were discordant and then things turn sour, window periods, abuse of the law by avenging partners?
Studies also show that criminalising wilful transmission of HIV will target groups that are already marginalised or vulnerable, including women, migrant workers, men who have sex with men and commercial sex workers.
The focus should be on availability of treatment, care and support and not criminalising as that may drive people away from testing and seeking treatment.
Coercive measures always serve a negative purpose. When it comes to sex, with its potent elements of need, want, trust, passion, shame, fear, risk and thoughtlessness; normal, reasonable people do not always follow public health guidelines.
Bringing up the criminal law in such circumstances may be inappropriate, unscientific and plain wrong.
The other cause of concern is the length of the sentence, it is ferocious.
Someone is punished not for what they did, but for the virus they carry. The threat of imprisonment, and the shame and ordeal of their conviction, will continue to hang over them.
These laws are stunningly wide in their application, and fearsome in their effects. They attack rational efforts to lessen the impact and spread of the epidemic with a sledge-hammer. They represent a rash phenomenon that is taking place worldwide.
While the law can indeed play a constructive role in the response to HIV, especially in addressing the vulnerable position of many women; concluding that HIV-specific criminal provisions and prosecutions should be part of the legal response is bad.
It should be countered; rationally, powerfully and systematically. I wish to offer ten reasons why criminal laws and criminal prosecutions make bad policy in the AIDS epidemic.
1. Criminalisation is ineffective because in the majority of cases, the virus spreads when two people have consensual sex and that will continue to happen, no matter what criminal laws are enacted and what criminal remedies are enforced.
2. Criminal laws and criminal prosecutions are a shoddy and misguided substitute for measures that really protect those at risk of contracting HIV. We know what we need in this epidemic, after more than a quarter-century, we know very well. We need effective prevention, protection against discrimination, reduced stigma, strong leadership and role models, greater access to testing, and, most importantly; treatment for those who, today, this morning, are unnecessarily dying of HIV-related infections. HIV is now a medically manageable condition. It is a virus, not a crime, and we must reject interventions that suggest otherwise.
3.The statutes are far from protecting women, The material circumstances in which many women find themselves, especially in Africa, make it difficult and all too often impossible for them to negotiate for safer sex or to discuss HIV at all.
4. Criminalisation is often unfairly and selectively enforced. Prosecutions and laws single out already vulnerable groups like sex workers, men who have sex with men and, in European countries, black males. The prosecutions have therefore been necessarily arbitrary.
5. Criminalisation places blame on one person. This is a hard but important thing to say. HIV has been around for nearly three decades. For nearly three decades, the universal public information message has been that no one is exempt from it. So the risk of getting HIV (or any sexually transmitted infection) must now be seen as an inescapable facet of having sex. We cannot pretend that the risk is introduced into an otherwise safe encounter by the person who knows or should know s/he has HIV.
The risk is part of the environment, and practical responsibility for safer sex practices rests on everyone who is able to exercise independence in deciding to have sexual intercourse with another.
6. These laws are difficult to apply. This is because they intrude on the intimacy and privacy of consensual sex. ln cases where there is no deliberate intention, the categories and distinctions of the criminal law become vague and incapable of offering clear guidance to those affected by the laws and to prosecutors.
7. Many of these laws were poorly drafted. This is partly because of evidentiary burdens and the difficulty of satisfying them (that is, who infected whom).
8. Perhaps most painful to those living with HIV, criminalisation increases stigma. It is stigma that makes those at risk of HIV reluctant to be tested, it is stigma that makes it difficult and often impossible for them to speak about their infection and it is stigma that continues to hinder access to the life-saving antiretroviral therapies that are now increasingly available across Africa. But HIV is a virus, not a crime. That fact is elementary, and all-important. Law-makers and prosecutors overlook it.
9. Criminalisation is a blatant discouragement to testing. By reinforcing stigma, by using the weapons of fear and blame and retaliation, criminalisation makes it more difficult for those with or at risk of HIV to access testing, to talk about diagnosis with HIV, and to receive treatment and support. Criminalisation is thus costing lives.
10. This point is about belief and hope — words all too seldom heard in this epidemic. Criminalisation assumes the worst about people with HIV, and in doing so it punishes vulnerability.
A combined effort that includes improved education levels, awareness of the disease, access to affordable healthcare services and reducing stigmatisation and discrimination, especially of vulnerable groups, would probably be more effective than mere criminalisation.
Coddy Fungai Nyamundanda is a legal practitioner who writes in his personal capacity. Feedback: [email protected]