Willfully exposing people to HIV poses moral, legal dilemma
Word of caution! This is not meant to stigmatise, criminalise or victimise anyone but to bring out the stark reality of some odd cases where a patient, knowingly spreads the Human Immunodeficiency Virus (HIV) to the unsuspecting.
Jane* was a barmaid in Dar es Salaam where this writer lived a couple of years ago. The moment she was diagnosed with HIV, she decided to have intimate affairs with as many men as she could lay her hands on, young and old alike.
Jane’s story was disclosed by a fellow barmaid who had accompanied her to her Iringa home after she became too ill. The symptoms of the disease had become full blown and her fellows could not afford to foot medical bills. Later she died.
There is yet another story of a man who did something akin to that. He was a great friend. After doctors diagnosed him with HIV, he did not bother to protect others from the virus.
Using money (he had plenty of it), he solicited for sex from as many unsuspecting women. When he died, he left behind a list of women he allegedly infected with the virus, including people’s wives!
In the same vein, is not lost to memory that not so long ago, driven by superstitious beliefs and ill-advice from traditional healers, some men knowingly infected young girls with HIV.
It was a common belief that by having sex with virgins, they would purge themselves of the virus. One such incidence was reported in Malawi. In our own backyard, two men were in 2012 sentenced to life imprisonment for defiling minors in separate incidents in Bukombe District, Geita Region. A hospital report later showed that the minor had contracted HIV, highlighting the gravity of the matter.
Is law alone a panacea?
According to the HIV and Aids Prevention and Control Act of 2008, any person who intentionally transmits HIV to another person commits an offence, and on conviction shall be liable to imprisonment to a term of not less than five years and not exceeding ten years.
The Head of legal unit at Tanzania Commission for Aids (Tacaids) Ms Elizabeth Kaganda says the laws were not put in place for the purpose of criminalising, victimisation or even stigmatisation but envisaged the broader perspective of protecting vulnerable groups.
“It should be noted that the main intention of this provision is to ensure that the vulnerable population such as women, girls, young persons, prisoners and homeless remains safe,” she tells Your Health.
“Most of the victims of these acts are those who are either economically challenged or whose consent to sex cannot expressly be obtained; it suffices to say those who commonly undergo sexual assaults,’’ she explains further.
Ms Kaganda cautions that the provision was not intended for pregnant women as one cannot establish evil mind (motive) out of them when they accidentally transmit HIV during childbirth.
But, she notes, the evidence of malicious intention is key when prosecuting cases of wilful infection of HIV.
“Premeditated evil intentions is one of the key ingredient of this offence. There has to be the proof that there was an intention to transmit HIV maliciously through evidence adduced that the person knew if they already are HIV zero status, if they have been using medication, are there chances of viral load suppression? Other considerations include whether they disclosed their HIV status before having sex and whether due care was taken including use of any protection including condom,’’ she explains.
The dilemma
It has been argued that criminalised deliberate infection goes against human rights considerations. Perhaps it is because such a legislation is viewed as not being humane and negating the whole process of HIV control. Indeed, law and can be seen as a force for good and it can also be a force for bad.
However, according to Ms Kaganda, there are challenges to the prosecution of such cases owing to confidentiality and under-the-table settlement of the cases to ensure that they are kept away from the authorities.
“In Tanzania we have been getting challenges on the execution of this provision of law due to complications arising from the issues of confidentiality, scientific evidence and victims opting to be financed by the accused instead of going to court,” she added.
The UNAids International Guidelines on HIV and Human Rights outline how states can effectively manage the spread of HIV. The guidelines stress that this can only be achieved through the promotion of human rights for those living with the disease;
“States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV or targeted against vulnerable groups.”
According to the Criminalisation of HIV Non-Disclosure, Exposure and Transmission: Background and Current Landscape published by UNAIDS, since 2007, at least 12 jurisdictions – Burkina Faso 23, Cape Verde24, Chad 25, China (Gansu province) 26, Congo 27, Democratic Republic of Congo 28, Equatorial Guinea 29, Kenya 30, Mauritania 31, Nigeria (Lagos state) 32, Singapore 33 and Tanzania 34 – have enacted or implemented new laws that criminalise HIV non-disclosure, exposure and/or transmission.
Dr Chris Peterson, a medic based in Dar es Salaam says sexual matters being private, it becomes very difficult to prosecute such cases. The only thing any doctor can do is to counsel any patient who is found culpable. In the absence of explicit laws that render deliberate spread of HIV criminal from the medical point of view, the dilemma that laws alone is far from being a panacea for infection abound. Doctors have to also deal with situations where a partner consents to sex even when they are fully aware that the other partner is infected.
“Medically speaking, counselling to curtail the spread of the behaviour is what we do – we let patient know that it is not healthy to spread the disease deliberately. Sexual matters require the consent of those partaking of it and is shrouded by secrecy. We have had cases where one of the consenting partners very well knows that the other partner is infected and goes ahead and has sex without protection. We encourage them to abstain for at least three months and then take HIV tests,” he said.
