InterPress News Service (IPS); Friday, 10 January 1997.
Shenilla Mohamed

Following the publication of the draft law in the government gazette in August, the permanent secretary with the Ministry of Justice, Legal and Parliamentary Affairs, Yunis Omerjee, said the ministry has been inundated with requests from women's groups and individuals requesting that the clause excluding spouses be reconsidered.

"Since our aim is certainly not to violate the rights of married people, we are in the process of reviewing the law and are considering amending the proposal in accordance with the submissions received," said Omerjee.

Should the amendments be made, he says, a wife would be allowed to prosecute her husband if he knew he was HIV positive. Omerjee said marriage should not become a license permitting people to spread the disease and added that a law empowering a spouse to withdraw conjugal rights in such a situation is also being reviewed.

Omerjee admits, however, that implementation of the law will be "tricky and difficult" due to questions of evidence. "We would have to determine who gave the disease to whom and when the partner revealed that he was carrying the disease. He could admit it years later or when the spouse begins to develop symptoms, so there is definitely a risk of facing evidential problems in such cases," he says.

In its present form, the Criminal Law Amendment Bill, as it is called, states that the "deliberate transmission of HIV by infected persons to uninfected persons is a criminal offense."

It goes on to state that the provision does not apply to married persons and that under the new law "a mandatory prison sentence of up to 20 years will be imposed on any person who is convicted of a sexual offense if it is proved that, at the time of the offense, the convicted person was infected with HIV."

The bill unleashed a cry of protest from women's groups who described the proposal, and in particular the exclusion of spouses, as a "mockery" since married women are the highest risk group for HIV transmission in the country.

Helen Jackson, Director of Research at the School of Social Work in Harare and founder member of the AIDS Counselling Trust (ACT) says one of the most critical issues in curbing HIV and improving support for infected people is to empower women. "At present women have little control over sexual relations within marriage and poorer access than men to education, training and employment, and they are economically vulnerable," she says.

Jackson describes an interview she had with one woman who said: "I don't know what to do. My husband's girlfriend is dying of AIDS and I know that means he is probably infected too. I have tried to refuse sex with him because he will not use a condom with me. He says it is not right for a wife to talk about such a thing, and he gets angry if I raise the subject. Now what is happening is that when he wants sex he rapes me. What can I do?"

According to Jackson the plight of this woman highlights the dilemma faced by many married women. She says the bill, in its present form, will just serve to aggravate the situation.

"Culturally, men and women expect men to control sexual relations within marriage, and women do not have the right to refuse their husbands sex, particularly if 'roora' or 'lobola' (bride wealth) was paid," she notes.

"By excluding married women from the proposed law, they are effectively saying that it is acceptable for a man to rape his wife when he is HIV positive," says Lynde Francis, Executive Director of The Center, an AIDS support organization.

Francis says she also objects to the fact that the proposal was drafted without any input from women's groups. She says it appears that the entire proposal was put forward without proper thought being given to the consequences.

"I don't think anyone has any argument with the precept that HIV is an aggravating factor in sexual abuse and we do not dispute that rapists and sexual abusers should be in jail. But if the situation is not properly handled and HIV-infected people are put in the same jail as lesser offenders, we might be creating a time bomb that will eventually explode in our faces," she cautions.

Francis says the entire prison system has to be reformed before such a law can be effectively implemented. "It is a known fact that sodomy is rife in jails, as are HIV and tuberculosis, so it is vital that programs aimed at educating prisoners on AIDS be intensified and the free distribution of condoms be encouraged," she says.

She also feels the law is impractical in many ways and thus open to abuse. "It works on the assumption that the complainant was HIV- negative at the time. But how do you prove it?" she asks.

Two consenting adults who have sex make an assumption of risk and must share an equal responsibility in safety and protection. "This bill actually places the onus on the person who knows his status and more dangerously lets people off the hook from protecting themselves," she says.

But perhaps the most dangerous consequence, Francis believes, is the fact that some people will stop going for HIV tests. "It will be a case of 'ignorance is bliss' and will result in throwing the entire prevention effort back 10 years because knowing your status early can cause problems," she says.

A survey conducted by AIA on the bill reveals that while 90 percent of the women interviewed expressed anger at the exclusion of spouses, only 20 percent said they would actually prosecute their husbands for giving them the disease. About 30 percent of the women said they were not sure and it depended on their mental condition at the time. The remaining 50 percent were adamant that they would not take action against their spouse in such a situation.

"While I agree that women should have the right and option to make their own decision on this matter, I really do not see many women actually taking action against their errant husbands, even if they contract AIDS from them. We are dealing with decades of conditioning and socialization, perpetuating the belief that women do not have many rights within a marriage and it is going to take a long time to erase these attitudes," says Stella Ncube, a teacher.

(Shenilla Mohamed is a correspondent for Africa Information Afrique, a news and feature service based in Harare, Zimbabwe.)

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