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.
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.
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.
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.