Southern Africa

Botswana has been debating whether to enact HIV-specific criminal laws since 2000  (reported at the Global Criminalisation Scan). A recent prosecution based on section 184 of the Botswana Penal Code (‘spreading infection’) failed primarily because the complainant did not test HIV-positive and was unable to convince the court that she was certain about the defendant not using a condom. Although the court acknowledged that the sex was non-consensual, the accused man was acquitted of both ‘speading infection’ and of having non-consensual sex.¹

Lesotho, in the Sexual Offences Act 2003, criminalised HIV exposure or transmission occurring as a result of someone failing to disclose his or her HIV-positive status during consensual sex. There have been no reports of prosecutions.

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that "an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified."² A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007.³ Rather, the legislation requiresHIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.⁴

Following proposals as early as 1996,⁵ Zimbabwe became the first African country to create an HIV-specific criminal law when it passed the Sexual Offences Act of 2001. Anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows ... will infect another person with HIV”⁶ was now committing a crime. The law was revised in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.⁷ Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act, 2004, came into effect in 2006.

Although the crime in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV. It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.” The HIV-negative partner’s informed consent following the other partner’s disclosure of a possible or confirmed HIV-positive status can serve as an affirmative defence.

The first successful prosecution under any of Zimbabwe's HIV-specific criminal statutes (and for alleged sexual HIV exposure on the African continent) took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.⁸ In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.⁹ Three cases alleging sexual HIV transmission, two concerning female defendents^10,11 and one concerning a male defendent,¹² are currently before the courts. In another recent case, a man was fined US$9 for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.¹³