Division D of the Criminal Code, which is the law that regulates penalties for crimes in Zimbabwe, pertains to transmitting HIV deliberately or in the course of committing sexual crimes. Section 79 in particular refers to deliberate transmission of HIV and to be found guilty of the crime the following factors are considered;
a) The knowledge that one is infected;
b) The realisation that there is a risk or possibility that one has HIV;
c) Intentionally doing anything or allowing for something to be done knowing that there is a possibility of infecting the other person.
According to this law, a person does not necessarily have to have been infected with HIV by the accused person but simply that the accused engaged in conduct that could risk the transmission of the virus is enough to warrant a conviction. Once found guilty, a person can be imprisoned for a maximum of 20 years. Married couples are not exempt from this law and therefore it is not a defence to state that the sexual activity was done during the exercise of conjugal rights. Section 53 of the draft Marriages Bill proposes that this law be removed and various circumstances were taken into account before reaching this decision.
Before making any conclusions about the Parliament’s decision for the proposal to decriminalise HIV transmission, a simple summary of what HIV entails may be necessary;
HIV stands for human immune deficiency virus. This virus attacks the immune system which the body uses to fight against illness.
The HIV virus destroys specific white blood cells called CD4 and by destroying these it also undergoes a process of replicating or making copies of itself therefore weakening the immune system.
If HIV is left untreated it can take an average of 10 – 15 years to weaken a person’s immune system. The time taken depends on certain specific factors such as age and general heath.
Acquired immune deficiency syndrome (AIDS) is not a virus but a set of symptoms caused by the HIV virus. It is regarded as the “final stage” of HIV.
HIV currently has no cure but it can be managed by taking antiretroviral medication which can be found locally.
If already infected, it is mandatory; or in the very least encouraged to be on antiretroviral treatment. This improves one’s chance of leading a healthier life.
The correct use of condoms during sexual intercourse is one of the best methods for the prevention of HIV transmission.
Why was HIV transmission criminalised?
The law which criminalises deliberate transmission of HIV was created in the late 90s and enacted in the early 2000s in Zimbabwe at the peak of the HIV and Aids pandemic which plagued the country and the continent at large. The intention of this law was therefore to stop or prevent the transmission and spread of this virus which was considered a death sentence for many. It became a matter of public interest to criminalise the transmission of HIV as it was a threat to human life.
It has been argued; that criminalising deliberate transmission from the point of view of “disease prevention” which was the stance taken by the State and Government to combat HIV transmission, is flawed. It creates a false sense of security and the lack of need to protect one’s own health. It relegates the obligation to be responsible for one’s health to another person.
Why should we decriminalise deliberate transmission of HIV?
According to Dr Ruth Labode, Health and Child Care Parliamentary Portfolio Committee chairperson; there exists no link between the marked decline in infection rates and criminal sanction.
For a person to be found guilty of any crime in Zimbabwe there must be established proof beyond a reasonable doubt. This has been noted to be extremely difficult in instances of HIV transmission because of many reasons which include the fact that the direction of infection cannot be scientifically proven. Essentially, it cannot be proved who had the infection first and the only certainty may be with regards to who was tested first.
Some HIV genotype may be transmitted from another common source outside of the concerned parties.
Criminalising HIV infection promotes stigma and discrimination because according to Section 79 of the Criminal Code, a person may still be found guilty of this crime even through the sexual conduct did not result in actual transmission of HIV. Essentially anybody living with HIV is a potential criminal. This directly contradicts science because currently, constant and regulated consumption of the antiretroviral treatment reduces chances of transmission.
The current law on transmission of HIV does not reflect the current changes in the field of science and medicine. Research and knowledge at the time when this was criminalised was limited and more responsive than it was preventative.
The use of antiretrovirals was not yet normalised and regulated by any policy or law at the time Section 79 came into being.
Studies have shown that individuals who are aware of their HIV status, especially those who are living with HIV are likely to avoid high risk sexual conduct unlike a person who is unaware of their HIV status.
Other methods of HIV prevention have proven more useful and deterrent in the transmission of HIV such as condom use during sexual intercourse and taking of antiretroviral treatment for those who are infected.
A person who is HIV negative but is having sexual intercourse with a person living with HIV can have access to pre-exposure medication before the sexual conduct or post-exposure prophylaxis within 72 hours.
The current criminal justice system is not well-equipped to handle HIV related criminal matters because this requires science and technology to determine sequence of infection. The law is currently heavily hinged on the testimony of one person as the focus for conviction.
The law should therefore be rooted in scientific evidence to facilitate justice delivery. As it stands, the law does not reflect that. It has been established that improving the health care system, access to antiretroviral treatment, offering psychosocial support and awareness raising are better and more effective and non-discriminatory tools in preventing the spread of HIV.
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