Do we need to Criminalise HIV Transmission?

In what the Herald refers to a “precedent setting” matter, a Port Elizabeth man has been charged with attempted murder for allegedly infecting his niece with HIV. The criminalisation of the transmission of HIV is an issue which has already been considered by the South African Law Commission. In 2001, the Commission developed a report dealing with this issue of whether to enact legislation to punish those who transmit HIV. “The need for a Statutory Offence aimed at Harmful HIV-related behaviour” report concluded that there is no statutory intervention needed.

They noted that specific concerns were raised: The lack of scientific basis for the proposed reform; the overestimation of the role of the criminal law in reducing the high rate of HIV infection, in reducing the high rate of violence against women, and in changing risk behaviour; the possible detrimental effect of an HIV-specific offence/s on the position of women already affected by or vulnerable to HIV; and problems inherent in attempting to target consensual conduct with criminal sanctions.

It must be noted then, that the first draft of the Sexual Offences Bill contained a clause stipulating that a person who intentionally fails to disclose, to the person with whom they have intercourse, that they have a life-threatening sexually transmitted infection is guilty of unlawful conduct. However, this clause was not included in the Act that has been passed. Why?

There are criminal and civil laws that may be used to deal with the effects of intentional and malicious HIV transmission. Laws are not the problem. Where proof of the intention to cause harm exists, these laws can be applied. But in most instances, although there are allegations, beliefs and assumptions of intent, the problem has been with providing the proof. Adding another law to our statute books will not solve this problem.

If one added another law, maybe one that is more specifically targeted and only points to HIV transmission as an offence, what harm could such a new law do? Such a law cannot remove the need to provide proof, but some people argue that we should have such a law as it would “send out a clear message”. True. But this message would not solve the problem of proof and there is no indication that it will result in a new awareness of the responsibilities a person has towards others. There is no indication that adding laws to express what is already known, namely that if a person intentionally harms another this is an offence, will reduce the spread of HIV.

Instead such a law, rather than helping to reduce infections and promoting responsible behaviour, could perpetuate the stigmatisation of those living with HIV. Justice Edwin Cameron has come out strongly on the issue of the criminalisation of HIV transmission, appealing to states not to enact criminal laws specifically dealing with HIV transmission for a number of reasons. The criminalisation will not reduce the spread of HIV and, he argues, will instead result in the entrenchment of the stigmatisation of those living with HIV and may become a barrier to testing and treatment. It is likely to become a reason not to test, not to know and not to treat.

In South Africa, we no longer see HIV as a life sentence, but as a chronic, treatable illness. We need to focus on promoting this idea in order to reduce the stigma associated with HIV. Any policy that has the potential to discourage people from learning their HIV status via voluntary and confidential testing would appear to be counterproductive to public health. Stigma is what cripples our education and prevention efforts. Stigma is what encourages ignorance. Stigma is what can lead to a person to believe that there is nothing they can do about their own health. Today, the stigma is around HIV. Tomorrow it may be around TB. And where will it end?

We need to ensure that people know the dangers of alcohol and drugs in making it more difficult to be responsible and to prevent infection. In order to contribute to the reduction of HIV infection rates, we need to be encouraging people to get tested and to use contraceptives which reduce their exposure to HIV. People who are infected with HIV need to know their status so that they can obtain treatment and need to take responsibility for managing their health.

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.


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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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