Opinion / Columnist
Decriminalising AIDS spreaders Is brutal and an assault to humanity
26 Mar 2019 at 10:40hrs | Views
In 1996 the then Zimbabwe's Minister of Justice Emmerson Dambudzo Mnangagwa oversaw the proposed legislation which makes it a criminal offence for a person who knows that he or she is infected with HIV or any other sexually transmitted disease to have a sexual relationship. This proposed legislation was also heightening the liability for convicted rapists who are HIV-seropositive. The Criminal Law Amendment Act made it so that boys under age 12 cannot be charged or convicted of a sex crime; anyone, except in the case of married couples, intentionally infecting someone with HIV will be liable to a prison sentence not exceeding 15 years; a person convicted of rape, having sex with a girl under age 16 years, or having sex with an imbecile while being HIV-positive will be sentenced to prison for no more than 20 years, regardless of whether the person was aware he or she was infected; and all people charged with sex offenses will be tested for infection with HIV.
This law was heavily opposed by some NGOs. But the law went through and the minster Mnangagwa had come out as a warrior who would take the bull by the horns.
WHAT IS CRIMINAL TRANSMISSION OF AIDS
Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in the discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Others, Zimbabwe charges the accused under existing laws with such crimes and very tough penalties are given. State laws criminalize different behaviours and assign different penalties. While pinpointing who infected who is scientifically impossible, a person diagnosed with HIV who is accused of infecting another while engaging in sexual intercourse is, in many jurisdictions, automatically committing a crime.
Twenty years letter the country is now calling for the repeal of statutes that criminalize HIV-related behaviour. "Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV-infected are unjust and harmful to public health around the world." They argued that such laws contribute to stigmatization and discrimination that inhibit diagnosis and result in "harsh sentencing for behaviours that pose little to no risk of HIV transmission." they argue that there is no scientifically accurate information regarding HIV transmission routes and risk. In that argument, they insist that people must be left to their demise under the predators who know that they are HIV and deliberately infect others who are not aware of such condition.
In 2017 the Centre for Disease Control and Prevention (CDC) in America stated that those who are on HIV medication and have undetectable viral loads can no longer transmit the virus, but the possibility for a person to not use a prescription and continue to infect others remains.
Zimbabwe's parliament then approved the legislation which made it a criminal offence for a person who knows that he or she is infected with HIV or any other sexually transmitted disease to have a sexual relationship. The legislation also heightens liability for convicted rapists who are HIV-seropositive. The Criminal Law Amendment Act made it so that boys under age 12 cannot be charged or convicted of a sex crime; anyone, except in the case of married couples, intentionally infecting someone with HIV will be liable to a prison sentence not exceeding 15 years; a person convicted of rape, having sex with a girl under age 16 years, or having sex with an imbecile while being HIV-positive will be sentenced to prison for no more than 20 years, regardless of whether the person was aware he or she was infected, and all people charged with sex offences will be tested for infection with HIV. Such legislation has been a great help to check the spread of HIV. Furthermore, criminalizing the transmission of HIV will encourage people to come out clear on their status and lessens the risk to spread and infect others. These people were engaged in seeking education, counselling, and treatment, further bringing up positive thinking about HIV and AIDS, uniting communities and households, and protecting basic human rights. Knowledge or consent, even if transmission did not take place should be punishable at law.
In England and Wales, the penalty is a maximum prison sentence of five years for each person someone is found guilty of infecting. There is no minimum sentence.
Non-UK residents can be recommended for deportation upon completion of their sentence.
In Scotland, sentencing has been at the higher end of the scale for ‘reckless conduct', ranging from five years in one case to 10 years for a person who infected one individual and had ‘exposed' three others.
Intentional transmission In Zimbabwe it was raging from 10 years to twenty years. The sentencing and penalty are deterrent enough and the law had been instrumental to demystify Aids,
In other jurisdictions which is not Zimbabwe, Someone can only be charged with intentional transmission if it can be proved they maliciously and intentionally tried to give the other person HIV. Although many cases start with this allegation, so far the charges have always been reduced to the reckless transmission before reaching trial.
There is often a lot of confusion, with people assuming that anyone who knows they have HIV and then transmits it must have done so ‘intentionally', but this is not so – either legally or in everyday life.
However, the maximum sentence for intentional transmission is life imprisonment, so it is confusing why Zimbabwe wants to remove this law now. To what benefit will this be. The simplest way of avoiding prosecution is to make sure that your partner knows you have HIV, and that whatever sex you have is consensual within this knowledge. This makes people responsible and free to open up.
If you one does not feel able to tell them about his diagnosis, he should use a condom when having sex to avoid passing HIV on.
It's also important to follow doctor's advice on treatment and try to reduce viral load to undetectable levels, to minimise the chance of accidental transmission.
If one finds it difficult to use a condom, or difficult to insist that a sexual partner uses a condom, then one must find one who is willing to risk. In other jurisdictions, the common law offence of Culpable and Reckless Conduct is used to prosecute cases, but most countries have made the crime a statutory offence.
The law must focus on the behaviour of the defendant, rather than the harm caused, and whether their conduct can be considered ‘reckless' or not.
"We are going to introduce new legislation which makes it a criminal offense for a person infected with AIDS or an STD to have a sexual relationship when they know that they have the disease," The then Zimbabwe's Justice Minister Emerson Mnangagwa told the Ziana news agency. "This will also apply to marriages." This was the zeal the then minister of justice had in a bid to protect the people.
Zimbabwe has one of the highest HIV infection rates in the world. More than one-quarter of Zimbabwe's population is said to be HIV-positive, with an estimated 300 people a week dying from AIDS-related illnesses. This epidemic is set to grow if the law is repealed and substituted with a licence to kill. If the Criminal Law Amendment Bill is approved by Parliament later this year, those who are deliberately transmitting HIV or other STDs will no longer be jailed for a maximum of 15 years, and rapists who infected people would not be sentenced to at least 15 years in jail but they will receive a pat on the back and probably informed to do it more next time. The then Justice Minister Emerson Mnangagwa explained that if a person were accused of raping someone or spreading a disease, they would be tested for viruses before a hearing. "If the person is found positive, the person will get the stiffer sentence, regardless of whether the person had prior knowledge or not, because the rape put the victim at risk of infection." It should be mentioned that the minister is now the president of Zimbabwe. His brilliant thoughts on HIV spreading will be undone by this repeal if it succeeds.
Using the criminal law to punish those who spread sexually transmitted diseases has long been a controversial issue. As the global HIV epidemic enters its fourth decade, this debate has rumbled on. There are a variety of problematic social and legal consequences which arise from criminalising the transmission of sexually transmitted diseases, but nevertheless the past decade has seen the enactment of such criminal legislation in a variety of jurisdictions. The enactment of the legislation has in some way slowed down the spread of the diseases and indeed it was a revelation
The proposal to change the law in Zimbabwe in relation to sexually transmitted diseases is powered by the belief that consenting to sex equates to consenting to what may come from sex, this thinking is dangerous and should not be accepted in today's world. However, the dissenting thinking in this case demonstrates tensions with the thinking of repealing the law; It must be noted that the "irrevocable privilege to have sexual intercourse with (one's wife)… does not justify a husband in endangering his wife's health and causing her grievous bodily harm or death, by exercising his marital privilege when he is suffering from venereal disorder or infected with HIV." This thinking demonstrates concerns for an ‘informed consent' doctrine in criminal law. Allowing a person to go and infect people with HIV willingly is backed from the devil's oven. One is allowed to inflict a slow painful death to those who are not aware of this status is wrong. The cruelty exercised by this law if it succeeds is beyond measure. The law will not only be satanic but it will be evil.
The defendants who know that they suffer from HIV and recklessly transmit HIV through sexual intercourse without disclosing their infected status to their sexual partner would be criminally liable and this must not be changed. There is no greater cruelty than this one. If the appellant concealed the truth about his condition from the victims and therefore kept them in ignorance of it, there is no reason for them to think that they are running any risk of infection, and they are not consenting to it. On this basis, there would be no consent sufficient in law to provide the appellant with a defence to the charge of deliberately infecting another.
One of the most difficult aspects of the offence is to distinguish whether or not the defendant has knowledge of his status. The concept of knowledge here is problematic; at what stage does a person ‘know' of their HIV status? It would appear that the criminal law imposes liability as a regulatory mechanism; if the defendant knows that he may have HIV and fails to seek testing then the offence can be imposed. On the one hand, one could suggest that this approach attempts to encourage a health-conscious society. There would be a strong incentive to seek medical testing in order to confirm whether or not the defendant actually has a disease. This principle will enforce responsibility on people and save millions more from the infection itself. On the one hand, restricting the offence to actual knowledge may let blameworthy individuals escape criminal liability. The arguments against basing liability for transmission of HIV on a finding of wilful blindness greatly outweigh those in favour of doing so. While recognising the attractiveness of equal culpability arguments (especially in cases where an individual suspects very strongly that they have the HIV virus, has ready access to medical testing, and being fully aware of the risks, continues to have unprotected sexual intercourse with unsuspecting partners), the disadvantages associated with adopting such a policy, particularly the potential for discrimination and prejudice should be sufficient for criminal liability.
There are further serious problems with the approach to criminalising the transmission of HIV and other sexually transmitted diseases. One may consider that a defendant who has constructive knowledge of their disease is morally blameworthy, and that the imposition of criminal liability may lead to a greater awareness of medical testing in the wider community. The criminal law assumes that there is a general level of public knowledge and a general level of medical advice and treatment given to patients in relation to HIV., In the context of the severity of a conviction, the fact that "we cannot be confident that the accused even knew, for example, which sex acts are risky and which are relatively safe" is extremely worrying. This is a valid concern, considering that a HIV sufferer who is uninformed about the risks of unprotected sexual intercourse, and who does not understand how the disease is transmitted, may face up to five years imprisonment if found guilty of an offence. This is just an area of the law which can be left to be decided by the judge. Activists do argue that that the current state of the law attempts to ensure a fair imposition of criminal liability by balancing the interests of both potential victims and HIV sufferers. HIV sufferers have a defence if they have an honest belief that their partner had consented to sexual intercourse in full knowledge of the sufferer's status:
Changing the law now is not the best thing to do. Keeping the law significantly reflects a respect for the principle of autonomy in the criminal law. Denying someone the right to consent to sexual intercourse with an infected person, and simultaneously denying an infected person this defence, would "amount to an infringement of autonomy that only Parliament should sanction." Additionally, the aforementioned case law examples similarly demonstrate a strong argument in favour of autonomy; those advocating for the change are particularly concerned with the issue of consent to sex with an infected person, rather than consent to sex. What should be looked at is that the consent should be to have sex with an infected person.
The question for decision is whether the victims' consent to sexual intercourse, which as a result of his alleged concealment was given in ignorance of the facts of the appellant's condition, necessarily amounted to consent to the risk of being infected by him. If that question must be answered "Yes", the concept of consent in relation is devoid of real meaning.
Some critics argue that the defence of "full knowledge consent" does not go far enough. There is a fine distinction in the law concerning consent; a person may consent to run the risk of infection, but a person cannot consent to the infliction of the infection. In essence: there is a limit to what can legally be consented to. The difference between the two situations concerns recklessness and intention. If a defendant has disclosed their HIV status and their sexual partner consents to the risks, then the defendant has not been reckless. In that situation, the defendant does not fulfil the necessary state of mind to be convicted under the existing law. However, if the defendant intends to inflict their sexual partner with HIV or another STD, then consent does not provide a defence.
In short, it will not be a good idea to decriminalise wilful infection of HIV.
vazet2000@yahoo.co.uk
This law was heavily opposed by some NGOs. But the law went through and the minster Mnangagwa had come out as a warrior who would take the bull by the horns.
WHAT IS CRIMINAL TRANSMISSION OF AIDS
Criminal transmission of HIV is the intentional or reckless infection of a person with the human immunodeficiency virus (HIV). This is often conflated, in laws and in the discussion, with criminal exposure to HIV, which does not require the transmission of the virus and often, as in the cases of spitting and biting, does not include a realistic means of transmission. Some countries or jurisdictions, including some areas of the U.S., have enacted laws expressly to criminalize HIV transmission or exposure, charging those accused with criminal transmission of HIV. Others, Zimbabwe charges the accused under existing laws with such crimes and very tough penalties are given. State laws criminalize different behaviours and assign different penalties. While pinpointing who infected who is scientifically impossible, a person diagnosed with HIV who is accused of infecting another while engaging in sexual intercourse is, in many jurisdictions, automatically committing a crime.
Twenty years letter the country is now calling for the repeal of statutes that criminalize HIV-related behaviour. "Policies and laws that create HIV-specific crimes or that impose penalties for persons who are HIV-infected are unjust and harmful to public health around the world." They argued that such laws contribute to stigmatization and discrimination that inhibit diagnosis and result in "harsh sentencing for behaviours that pose little to no risk of HIV transmission." they argue that there is no scientifically accurate information regarding HIV transmission routes and risk. In that argument, they insist that people must be left to their demise under the predators who know that they are HIV and deliberately infect others who are not aware of such condition.
In 2017 the Centre for Disease Control and Prevention (CDC) in America stated that those who are on HIV medication and have undetectable viral loads can no longer transmit the virus, but the possibility for a person to not use a prescription and continue to infect others remains.
Zimbabwe's parliament then approved the legislation which made it a criminal offence for a person who knows that he or she is infected with HIV or any other sexually transmitted disease to have a sexual relationship. The legislation also heightens liability for convicted rapists who are HIV-seropositive. The Criminal Law Amendment Act made it so that boys under age 12 cannot be charged or convicted of a sex crime; anyone, except in the case of married couples, intentionally infecting someone with HIV will be liable to a prison sentence not exceeding 15 years; a person convicted of rape, having sex with a girl under age 16 years, or having sex with an imbecile while being HIV-positive will be sentenced to prison for no more than 20 years, regardless of whether the person was aware he or she was infected, and all people charged with sex offences will be tested for infection with HIV. Such legislation has been a great help to check the spread of HIV. Furthermore, criminalizing the transmission of HIV will encourage people to come out clear on their status and lessens the risk to spread and infect others. These people were engaged in seeking education, counselling, and treatment, further bringing up positive thinking about HIV and AIDS, uniting communities and households, and protecting basic human rights. Knowledge or consent, even if transmission did not take place should be punishable at law.
In England and Wales, the penalty is a maximum prison sentence of five years for each person someone is found guilty of infecting. There is no minimum sentence.
Non-UK residents can be recommended for deportation upon completion of their sentence.
In Scotland, sentencing has been at the higher end of the scale for ‘reckless conduct', ranging from five years in one case to 10 years for a person who infected one individual and had ‘exposed' three others.
Intentional transmission In Zimbabwe it was raging from 10 years to twenty years. The sentencing and penalty are deterrent enough and the law had been instrumental to demystify Aids,
In other jurisdictions which is not Zimbabwe, Someone can only be charged with intentional transmission if it can be proved they maliciously and intentionally tried to give the other person HIV. Although many cases start with this allegation, so far the charges have always been reduced to the reckless transmission before reaching trial.
There is often a lot of confusion, with people assuming that anyone who knows they have HIV and then transmits it must have done so ‘intentionally', but this is not so – either legally or in everyday life.
However, the maximum sentence for intentional transmission is life imprisonment, so it is confusing why Zimbabwe wants to remove this law now. To what benefit will this be. The simplest way of avoiding prosecution is to make sure that your partner knows you have HIV, and that whatever sex you have is consensual within this knowledge. This makes people responsible and free to open up.
If you one does not feel able to tell them about his diagnosis, he should use a condom when having sex to avoid passing HIV on.
It's also important to follow doctor's advice on treatment and try to reduce viral load to undetectable levels, to minimise the chance of accidental transmission.
If one finds it difficult to use a condom, or difficult to insist that a sexual partner uses a condom, then one must find one who is willing to risk. In other jurisdictions, the common law offence of Culpable and Reckless Conduct is used to prosecute cases, but most countries have made the crime a statutory offence.
The law must focus on the behaviour of the defendant, rather than the harm caused, and whether their conduct can be considered ‘reckless' or not.
"We are going to introduce new legislation which makes it a criminal offense for a person infected with AIDS or an STD to have a sexual relationship when they know that they have the disease," The then Zimbabwe's Justice Minister Emerson Mnangagwa told the Ziana news agency. "This will also apply to marriages." This was the zeal the then minister of justice had in a bid to protect the people.
Zimbabwe has one of the highest HIV infection rates in the world. More than one-quarter of Zimbabwe's population is said to be HIV-positive, with an estimated 300 people a week dying from AIDS-related illnesses. This epidemic is set to grow if the law is repealed and substituted with a licence to kill. If the Criminal Law Amendment Bill is approved by Parliament later this year, those who are deliberately transmitting HIV or other STDs will no longer be jailed for a maximum of 15 years, and rapists who infected people would not be sentenced to at least 15 years in jail but they will receive a pat on the back and probably informed to do it more next time. The then Justice Minister Emerson Mnangagwa explained that if a person were accused of raping someone or spreading a disease, they would be tested for viruses before a hearing. "If the person is found positive, the person will get the stiffer sentence, regardless of whether the person had prior knowledge or not, because the rape put the victim at risk of infection." It should be mentioned that the minister is now the president of Zimbabwe. His brilliant thoughts on HIV spreading will be undone by this repeal if it succeeds.
Using the criminal law to punish those who spread sexually transmitted diseases has long been a controversial issue. As the global HIV epidemic enters its fourth decade, this debate has rumbled on. There are a variety of problematic social and legal consequences which arise from criminalising the transmission of sexually transmitted diseases, but nevertheless the past decade has seen the enactment of such criminal legislation in a variety of jurisdictions. The enactment of the legislation has in some way slowed down the spread of the diseases and indeed it was a revelation
The proposal to change the law in Zimbabwe in relation to sexually transmitted diseases is powered by the belief that consenting to sex equates to consenting to what may come from sex, this thinking is dangerous and should not be accepted in today's world. However, the dissenting thinking in this case demonstrates tensions with the thinking of repealing the law; It must be noted that the "irrevocable privilege to have sexual intercourse with (one's wife)… does not justify a husband in endangering his wife's health and causing her grievous bodily harm or death, by exercising his marital privilege when he is suffering from venereal disorder or infected with HIV." This thinking demonstrates concerns for an ‘informed consent' doctrine in criminal law. Allowing a person to go and infect people with HIV willingly is backed from the devil's oven. One is allowed to inflict a slow painful death to those who are not aware of this status is wrong. The cruelty exercised by this law if it succeeds is beyond measure. The law will not only be satanic but it will be evil.
The defendants who know that they suffer from HIV and recklessly transmit HIV through sexual intercourse without disclosing their infected status to their sexual partner would be criminally liable and this must not be changed. There is no greater cruelty than this one. If the appellant concealed the truth about his condition from the victims and therefore kept them in ignorance of it, there is no reason for them to think that they are running any risk of infection, and they are not consenting to it. On this basis, there would be no consent sufficient in law to provide the appellant with a defence to the charge of deliberately infecting another.
One of the most difficult aspects of the offence is to distinguish whether or not the defendant has knowledge of his status. The concept of knowledge here is problematic; at what stage does a person ‘know' of their HIV status? It would appear that the criminal law imposes liability as a regulatory mechanism; if the defendant knows that he may have HIV and fails to seek testing then the offence can be imposed. On the one hand, one could suggest that this approach attempts to encourage a health-conscious society. There would be a strong incentive to seek medical testing in order to confirm whether or not the defendant actually has a disease. This principle will enforce responsibility on people and save millions more from the infection itself. On the one hand, restricting the offence to actual knowledge may let blameworthy individuals escape criminal liability. The arguments against basing liability for transmission of HIV on a finding of wilful blindness greatly outweigh those in favour of doing so. While recognising the attractiveness of equal culpability arguments (especially in cases where an individual suspects very strongly that they have the HIV virus, has ready access to medical testing, and being fully aware of the risks, continues to have unprotected sexual intercourse with unsuspecting partners), the disadvantages associated with adopting such a policy, particularly the potential for discrimination and prejudice should be sufficient for criminal liability.
There are further serious problems with the approach to criminalising the transmission of HIV and other sexually transmitted diseases. One may consider that a defendant who has constructive knowledge of their disease is morally blameworthy, and that the imposition of criminal liability may lead to a greater awareness of medical testing in the wider community. The criminal law assumes that there is a general level of public knowledge and a general level of medical advice and treatment given to patients in relation to HIV., In the context of the severity of a conviction, the fact that "we cannot be confident that the accused even knew, for example, which sex acts are risky and which are relatively safe" is extremely worrying. This is a valid concern, considering that a HIV sufferer who is uninformed about the risks of unprotected sexual intercourse, and who does not understand how the disease is transmitted, may face up to five years imprisonment if found guilty of an offence. This is just an area of the law which can be left to be decided by the judge. Activists do argue that that the current state of the law attempts to ensure a fair imposition of criminal liability by balancing the interests of both potential victims and HIV sufferers. HIV sufferers have a defence if they have an honest belief that their partner had consented to sexual intercourse in full knowledge of the sufferer's status:
Changing the law now is not the best thing to do. Keeping the law significantly reflects a respect for the principle of autonomy in the criminal law. Denying someone the right to consent to sexual intercourse with an infected person, and simultaneously denying an infected person this defence, would "amount to an infringement of autonomy that only Parliament should sanction." Additionally, the aforementioned case law examples similarly demonstrate a strong argument in favour of autonomy; those advocating for the change are particularly concerned with the issue of consent to sex with an infected person, rather than consent to sex. What should be looked at is that the consent should be to have sex with an infected person.
The question for decision is whether the victims' consent to sexual intercourse, which as a result of his alleged concealment was given in ignorance of the facts of the appellant's condition, necessarily amounted to consent to the risk of being infected by him. If that question must be answered "Yes", the concept of consent in relation is devoid of real meaning.
Some critics argue that the defence of "full knowledge consent" does not go far enough. There is a fine distinction in the law concerning consent; a person may consent to run the risk of infection, but a person cannot consent to the infliction of the infection. In essence: there is a limit to what can legally be consented to. The difference between the two situations concerns recklessness and intention. If a defendant has disclosed their HIV status and their sexual partner consents to the risks, then the defendant has not been reckless. In that situation, the defendant does not fulfil the necessary state of mind to be convicted under the existing law. However, if the defendant intends to inflict their sexual partner with HIV or another STD, then consent does not provide a defence.
In short, it will not be a good idea to decriminalise wilful infection of HIV.
vazet2000@yahoo.co.uk
Source - Dr Masimba Mavaza
All articles and letters published on Bulawayo24 have been independently written by members of Bulawayo24's community. The views of users published on Bulawayo24 are therefore their own and do not necessarily represent the views of Bulawayo24. Bulawayo24 editors also reserve the right to edit or delete any and all comments received.
