Article by Kudakwashe Ignatius Munyoro and Fadzai Traquino
In March of 2019 , the JUSTICE Minister Ziyambi Ziyambi revealed plans by government to repeal clauses in the Criminal Law Reform and codification Act which criminalises the deliberate transmitting of HIV by positive sexual partners. In a question and answer segment he indicated ,the law had not served its intended purpose of reducing the spread of the virus.
“…Indeed when the legislation came into effect, the thinking there was that, we need to control the spread of HIV by criminalising those who transmit it to partners willingly .But global thinking is that the law stigmatises people living with HIV and AIDS. Studies have shown that it does not produce the intended results that it is intended to achieve and so what the ministry is going to do is repeal that section of the law,” said Ziyambi.
In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23] section 79 Deliberate transmission of HIV is an offence. The Act states that,“(1) any person who
(a) Knowing that he or she is infected with HIV; or (b) realizing 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 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 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 twenty years.
“Deliberate transmission of HIV”, is ambiguous. In one’s eyes it is a crime that anyone is capable of committing because one only has to realise “that there is a real risk or possibility” that he or she might have HIV. To do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.
Zimbabwe in 2001 introduced the Sexual Offences Act which came with criminalisation on deliberate transmission of HIV either through rape cases or by those who do not inform their sexual partners about their HIV positive status in cases of unprotected sex. This was a result of lobbying by Women who are mostly victims of sexual violence and also were victims of bad behaviour of intimate partners . Responsibility for the health of other people began to be placed on HIV-infected people, placing them in a situation of constant risk of criminal liability due to their chronic state of health. All over the world this is called criminalization of HIV infection.
From a rational point of view, criminalization of HIV infection is a futile measure, judging from the few cases successfully prosecuted and as it does not help to prevent HIV infection. There are a lot of scientific studies that prove that criminalization of HIV from the point of view of disease prevention is flawed. Criminalization of HIV infection undermines efforts to involve citizens in testing; creates a false sense of security and the lack of need to protect their own health; and leads to violations of the rights of those living with HIV, as they become targets of stigmatization. The duty of care is a collective responsibility. For instance, Condom use is one of the most effective ways to protect people from HIV during sexual intercourse. Condom use is a matter of everyone taking care of their own health. However due to gendered power relations it is not easy especially for women to discuss their positive status let alone negotiate for the use of a condom.
The Oslo declaration on HIV criminalisation prepared by International Civil Society in 2012 makes some critical points for consideration by countries in lobbying for the decriminalisation of HIV.
- HIV epidemics are driven by undiagnosed HIV infections not by people who know their HIV positive status. Unprotected sex includes risking many possible eventualities -positive and negative-including the risk of acquiring sexually transmitted infections such as HIV. Due to the high number of undiagnosed infections, relying on disclosure to protect oneself and prosecuting people for non disclosure – can and does lead to a false sense of security.
- HIV is just one of the many sexually transmitted or communicable diseases that can cause harm in the long term. Singling out HIV with specific laws or prosecutions further stigmatises people living with and affected by HIV. HIV related stigma is the greatest barrier to testing , treatment uptake , disclosure and a country’s success to “getting to zero new infections , Aids related deaths and zero discrimination.”
- Criminal laws do not change behaviour rooted in complex social issues, especially behaviour that is based on desire and impacted by HIV-related stigma.
- Such behaviour is changed by counselling and support for people living with HIV that aims to achieve health , dignity and empowerment .
- Neither the criminal justice system nor the media are currently well-equipped to deal with HIV related criminal cases. Once a person’s HIV status has been involuntarily disclosed in the media, it will always be available through an internet search. People accused of HIV-related ‘crimes’ for which they are not (or should not be found) guilty have a right to privacy. There is no public health benefit in identifying such individuals in the media; if previous partners need to be informed for public health purposes, ethical and confidential partner notification protocols should be followed.
In conclusion ;“The prevention of HIV is not just a technical challenge for public health. It is a challenge to all humanity to create a world in which behaving is truly feasible, is safe for both sexual partners, and genuinely rewarding. It can therefore be submitted that the common theme binding these deliberations, is the negative impact of HIV criminalisation.
 Justice Edwin Cameron of South Africa’s Supreme Court of Appeal at the XVII International AIDS Conference in Mexico