Sunday, January 24, 2021
  • About Us
  • ImagiNATION
  • Adverts
  • Rate Card
  • Contact Us
The Nation Online
  • Home
  • News
  • Politics
  • Business
  • Entertainment
  • Life & Style
    • Every Woman
      • Soul
      • Family
    • Religion
    • Feature
  • Society
  • Opinion
  • Sports
  • Chichewa
  • Enation
No Result
View All Result
  • Home
  • News
  • Politics
  • Business
  • Entertainment
  • Life & Style
    • Every Woman
      • Soul
      • Family
    • Religion
    • Feature
  • Society
  • Opinion
  • Sports
  • Chichewa
  • Enation
No Result
View All Result
No Result
View All Result
Home Columns My Turn

MY TURN: Criminal law and HIV: Need for caution

by Johnny Kasalika
26/12/2012
in My Turn
4 min read
0
Share on FacebookShare on TwitterShare on WhatsAppShare on LinkedinLinkedinShare via Email

One of the challenges that the subordinate courts face in criminal matters is the issue involving criminal law and HIV and Aids. Many times, courts are faced with multifaceted and thought provoking cases involving victims of sexual assault, namely rape, defilement and sodomy.

RelatedHeadlines

Framework for engaging retired experts

Why do national IDs expire?

Somaliland deserves recognition

When such offences are committed, victims are sent to hospitals for examination as to whether there was penetration of the male sexual organ into the female one, or male sexual organ into anus in sodomy cases.

At times, medical practitioners also conduct HIV tests. The problem is that an HIV test conducted a day or two after sexual assault cannot be attributed to the accused. Even if the HIV test is conducted after the 90-day window period, what evidence can be adduced that it was indeed the accused who had infected the victim.

The major problem is that apart from receiving evidence of the sexual assault, the court must also receive evidence beyond a reasonable doubt of the wilful transmission and make a determination as to whether indeed the victim was infected by the offender. The mere fact that there was a sexual assault is not conclusive that there was HIV transmission.

HIV test

Where the victim is found to be positive after the window period, the most sensible thing to do is for the court to make an order compelling the accused/offender to undergo an HIV test. Again, the offender cannot refuse the test on the premise that he did not give consent. The right not to be tested where consent is withheld does not arise where there is a court order. However, the court must still establish that there was knowledge and wilful transmission.

There are a few specific provisions of the law where transmission of venereal diseases is criminalised. These are Section 192 of the Penal Code and Sections 57 and 58(1) of the Public Health Act.

Where a person is charged with a sexual assault offence, and once it is established that there was a deliberate transmission of HIV, the State may charge the accused under a second count with knowingly infecting another with a venereal disease.

In this case, the State may wish to proceed with the substantive offence and after the window period and the HIV test then, (can) proceed with the other charge of knowingly transmitting the disease.

The problem, however, becomes visible where the person did not know that he had the disease. However, if (it) is established that after conducting a compulsory HIV test, that the accused is infected with HIV and he knew of his status, and the victim is also positive; then the question before the court becomes one of deciding whether the victim was infected by the accused.

Responsibility

For young girls who have had no previous sexual encounters, it becomes much easier than victims who are older and had sexual intercourse before.

Others have argued that as long as both the accused and the victim are positive, it must be assumed that it was the accused who is responsible and the onus of disputing this fact lies with him. This is the controversial reversal burden of proof.

This argument is premised on the fact that by raping or defiling or sodomising another, the offender cannot turn around and say that he did not know he was HIV positive. That the right to plead that defence is taken away from the accused by virtue of committing the original act knowing that it was a criminal offence.

This is where caution must be taken in view of the Republican Constitution and the international human rights law. Once both counts are proved and the due process of the law has taken place, the subordinate court will then proceed to sentence the offender without emotion and undue consideration, but only with regard to the law and the principles of sentencing.

The other area where there is much debate is where there is no offence committed and the sexual intercourse was consensual.

It has been argued that a partner who knowingly infects another with HIV must be prosecuted where there is evidence that the partner knew that he or she had HIV. However, it is difficult to prove that one knew that he or she had the disease unless it can be shown that there was prior testing.

Mere sickness or loss of weight cannot constitute knowledge on the part of the sick partner unless and until they go for HIV testing.

The million question is: Should we criminalise HIV transmission? Can we not find other ways of reducing the spread of the disease?

—The author is a judge.

Previous Post

Why do many students fail MSCE?

Next Post

When leaders become aliens

Related Posts

My Turn

Framework for engaging retired experts

January 11, 2021
national id | The Nation Online
My Turn

Why do national IDs expire?

January 8, 2021
My Turn

Somaliland deserves recognition

January 1, 2021
Next Post
JB in orange on podium dec26 | The Nation Online

When leaders become aliens

Trending Stories

  • Not yet given retirement benefits: Mutharika

    Tonse faulted on former presidents’ benefits

    0 shares
    Share 0 Tweet 0
  • High-profile official angered Wirima to quit

    0 shares
    Share 0 Tweet 0
  • Malawi vs Uganda.

    0 shares
    Share 0 Tweet 0
  • Wasteful Chakwera

    0 shares
    Share 0 Tweet 0
  • Legendary Patani Mwase remembered

    0 shares
    Share 0 Tweet 0

Opinions and Columns

Bottom Up

Thanks Team Onjezani Kenani; our turn now

January 23, 2021
My Thought

Cloud hangs on Mtambo’s head

January 23, 2021
Off the Shelf

Goodbye Trump, you were a joke

January 23, 2021
Back Bencher

Chakwera’s ‘politics’ rant was in bad taste

January 23, 2021
  • Values
  • Our Philosophy
  • Editorial policy
  • Advertising Policy
  • Code of Conduct
  • Plagiarism disclaimer
  • Disclaimer
  • Privacy Policy
  • Terms of use

© 2021 Nation Publications Limited. All Rights Reserved.

No Result
View All Result
  • Home
  • News
  • Politics
  • Business
  • Entertainment
  • Life & Style
    • Every Woman
      • Soul
      • Family
    • Religion
    • Feature
  • Society
  • Opinion
  • Sports
  • Chichewa
  • Enation

© 2020 Nation Publications Limited. All Rights Reserved.

This website uses cookies. By continuing to use this website you are giving consent to cookies being used. Visit our Privacy and Cookie Policy.