Wilful HIV infection difficult to prove

The National Prosecuting Authority yesterday publicly admitted that prosecuting a suspect for infecting a partner with HIV under the law which criminalises wilful infection was an uphill task.

Section 79 (1) (b) of the Criminal Codification and Reform Act criminalises wilful infection.

Lawyers yesterday argued that, under the Act a sexually active person is liable to prosecution for the offence even if no infection would have taken place.

It reads; "Any person who; realising 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?"

Advocates Thabani Mpofu, Nelson Chamisa, Webster Chinamhora and instructing counsel Mr David Hofisi, argued that Section 79 (1) (b) of the Criminal Law Codification and Reform Act was too wide, vague and arbitrary, thereby infringing on people's right to protection of the law.

Addressing the Constitutional Court in a case in which two women Ms Samukelisiwe Mlilo and Ms Pitty Mpofu, were challenging the constitutionality of the law, Law Officer Mr Editor Mavuto, said it was not an easy task to secure a conviction when there is no proof that one deliberately infected another.

The Constitutional Court yesterday reserved judgment in the case after hearing arguments from both parties.