Important note: Information in this article was accurate in 1999. The state of the art may have changed since the publication date.
Mail & Guardian (Johannesburg) - March 05, 1999
Ted Leggett
The commission concedes from the outset that criminal law is not the best tool to use in combating the proliferation of the disease. But numerous urban legends and a few prominent cases have created the public perception that some infected people are set on taking a few more citizens with them.
Images of crazed sociopaths stabbing unsuspecting grannies with syringes of infected blood fill the popular imagination. To this are added more serious studies of infected township youngsters saying they don't want to die alone, and the frightening rural maxim that having sex with a virgin (for that read child) will cure the disease.
Although these cases could be prosecuted under existing common law (attempted murder - there is a case pending) or present statutes (sex with a minor and rape are well- established crimes), problems with proving causation and intent might be smoothed over with a little statutory assistance.
But is this a good idea? From the outset, it should be made clear that very few people will ever be charged under an anti-Aids statute. The prosecutorial authority has far too many straightforward murders to worry about to be taking on this more arcane caseload. At most, we would be looking at one or two prominent test cases meant to act as a general deterrent.
So the most important effects of such a statute would not be in the numbers of actual murderers removed from the streets, but in the more subtle general impact such a statute would have. On the one hand, the statute might deter those thinking of passing on the virus. On the other, criminalising the spread of HIV would add to the hysteria around the disease.
Remember, this is the country where Gugu Dlamini was beaten to death by her neighbours after coming out as an infected person on National Aids Awareness Day. A law making the spread of Aids a crime would no doubt become the favoured legislation of kangaroo courts.
Issues that would supposedly be clarified, such as intent, would continue to be problematic. If you make intentional transmission illegal, you create an incentive for some people (like sex workers) to remain ignorant of their HIV status. If you broaden the intent requirement to recklessness, you risk making all unprotected sex into legitimate grounds for jail.
The chances of a sexually active woman having HIV in KwaZulu-Natal are close to one in three, according to statistics. Can any sexually active person in Durban be counted as wholly innocent under these conditions?
Since testing remains confidential, it will be necessary to impute intent from circumstances. Does being a promiscuous homosexual male who eschews condoms provide a basis for inferring intentional transmission? How about having an adulterous unprotected liaison or three with a prostitute?
If the statute is intended to deter harmful behaviour, it had better be aimed at behaviour that it has some small chance of affecting.
And why single out HIV? Does not the same logic apply to any communicable disease?
Clearly, we are entering into hazardous territory. We must resist the tendency to think that all our answers lie in applying an everstronger hand. Ted Leggett is a researcher in the Centre for Social and Development Studies at the University of Natal
990305
MG990302
Copyright © 1999 - Daily Mail & Guardian. For information about the content or for permission to redistribute, publish or use for broadcast, contact the publisher.
AEGiS is a 501(c)3, not-for-profit, tax-exempt, educational corporation. AEGiS is made possible through unrestricted funding from Broadway Cares/Equity Fights AIDS, Elton John AIDS Foundation, the National Library of Medicine, Pacific Life Foundation and donations from users like you.
Always watch for outdated information. This article first appeared in 1999. This material is designed to support, not replace, the relationship that exists between you and your doctor.
AEGiS presents published material, reprinted with permission and neither endorses nor opposes any material. All information contained on this website, including information relating to health conditions, products, and treatments, is for informational purposes only. It is often presented in summary or aggregate form. It is not meant to be a substitute for the advice provided by your own physician or other medical professionals. Always discuss treatment options with a doctor who specializes in treating HIV.
Copyright ©1980, 1999. AEGiS. All materials appearing on AEGiS are protected by copyright as a collective work or compilation under U.S. copyright and other laws and are the property of AEGiS, or the party credited as the provider of the content. .