Mail & Guardian (Johannesburg) - September 28, 2001
Belinda Beresford

Rather, the state should concentrate on using existing laws to punish HIV-positive people who have unprotected sex while failing to disclose their status to their partners.

Judge Edwin Cameron, head of the Law Commission committee looking at the issue, said he thinks it likely that consensual sex in such circumstances could eventually be regarded as rape by the South African courts. This follows a Canadian ruling that found the failure of a man to tell his female partner that he was HIV-positive negated her consent to unprotected sex.

Judge Cameron said existing common laws could "very effectively" be used against people who fail to disclose their serostatus while having unprotected sex.

"It's probably a rape; it might even be attempted murder. If there is infection then there is a whole array of common law crimes. Part of our reasoning is: why create an additional statute that will stigmatise people further but will be ineffective?"

Judge Cameron said the Canadian judgement "is likely to be followed in South Africa. When you have sexual intercourse with someone and put them at risk of transmitting something without disclosing that risk to them, then it voids their consent."

From a legal point of view, the crucial issue is whether the sexual partner has been put at risk; if a condom is used, it would not be rape. In male-to-male sex, the crime would be aggravated assault, since under South African law a man cannot be raped.

Such a ruling is likely to be controversial, since it could be extended to include a failure to reveal other sexually transmitted diseases such as chronic and incurable genital herpes.

Under existing common law, knowingly exposing a person to HIV could be classified as assault, lawyers point out, and infection of a sexual partner could be prosecuted as culpable homicide if the person dies or attempted murder if they do not.

But one problem is that at present HIV is a death sentence for most South Africans - yet a conviction of culpable homicide requires a body. And it is fairly likely that the "perpetrator" will die of Aids before the victim.

Laws exist to regulate society and provide means for the resolution of social conflict without redress to self-help, such as the vigilante groups or lynchings.

But, as the Law Commission is at pains to stress in its latest report on HIV, laws cannot work without a minimum social consensus. An all-encompassing disease like HIV/Aids needs to be met with a holistic response from society.

The confusion and stigma around HIV/Aids means that there are significant difficulties in using existing laws to penalise risky sexual behaviour by HIV-positive individuals.

Lack of adequate counselling, denial and even debate about the nature of the link between HIV and Aids can all contribute to a situation where an HIV-positive person may have unprotected sex, yet genuinely not realise that he or she is putting the other person at risk.

The Law Commission notes that the structure of society means that while women are more likely to catch HIV from men than vice versa, women are also more likely to know their serostatus from attendance at antenatal clinics.

Ironically, therefore, there is concern that women, who for physical and socio-economic reasons are more likely to need the law's protection, are also at greater likelihood of falling foul of it.

"This means that a specific offence aimed at punishing deliberate infection will impact disproportionately on and further victimise women," the commission report states.

Interfering with human activities can have unintended consequences, the report points out. It could, for example, mean that people fail to take responsibility to protect themselves, instead relying on fear of the law to force partners to admit their serostatus before sex.

The dearth of cases concerning deliberate or negligent HIV infection under existing laws has also added to the commission's scepticism about the usefulness of a new statute.

"The enactment of any such [legislation] might thus be largely of symbolic value," the report warns.

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