InterPress News Service (IPS); Thursday, 3 July 1997.
Shehnilla Mohamed

Activists have been fiercely lobbying for a review of the Criminal Law Amendment Bill soon coming before Parliament, because married women constitute one of the most vulnerable groups for the transmission of the Human Immunodeficiency Virus (HIV).

The proposed Bill makes "the deliberate transmission of HIV by infected persons to uninfected persons a criminal offence". It imposes a mandatory prison sentence of up to 20 years on any person convicted of a sexual offence, if it is proved that, at the time of the offence, the convicted person was infected with HIV.

"The Bill is actually a mockery, because by excluding married women they are effectively saying that it is acceptable for a man to rape his wife when he is HIV positive," said Lynde Francis, Executive Director of the AIDS Support Centre.

Helen Jackson, Director of Research at the School of Social Work in Harare and founder member of the AIDS Counselling Trust, described an interview she had with a distraught Zimbabwean woman who said: "I don't know what to do. My husband's girl-friend 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," the woman continued. "Now what is happening is that when he wants sex, he rapes me. What can I do?"

According to Jackson, this woman's plight highlights the dilemma faced by many married women. She said the criminalisation act, in its present form, would 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," Jackson said.

One of the most critical issues in curbing HIV and improving support for infected people is to empower women, Jackson added. "At present they have little control over sexual relations within marriage and poorer access than men to education, training and employment, and they are economically vulnerable," said Jackson.

Francis, who has been HIV positive for the past 10 years, also objects to the fact that the proposal was drafted without any consultation with women's groups. She argues that the entire proposal was put forward without proper thought 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," she said.

"But if 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," Francis cautioned.

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

According to Francis, 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?"

Two consenting adults who have sex make an assumption of risk and most 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," Francis said.

But perhaps the most dangerous consequence, Francis warned, is the fact that 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 by 10 years, because knowing your status early can cause problems," she said.

The permanent secretary with the Ministry of Justice, Legal and Parliamentary Affairs, Yunis Omerjee, said following the publication of the draft law in the government gazette last August, his department has been inundated by comments from women's groups requesting that the clause eliminating spouses be reconsidered.

In an interview with IPS, he said: "Since our aim is certainly not to violate the rights of married women we are in the process of reviewing the law and are considering amending the proposal in accordance with the submissions received.

"Should the amendments take place, the wife will be within her right to prosecute her husband, providing he knew he was HIV positive," Omerjee continued.

According to Omerjee, marriage should not be a licence for people to spread HIV. Also under review, he said, is a law empowering a spouse to withdraw conjugal rights if the partner is infected.

The permanent secretary admitted however that implementation of the law will be "tricky and difficult" due to the questions of evidence. "We would have to determine who gave the disease to whom, (and) when did one partner reveal that he (or she) had the disease," he said. "It may only be two years later after the spouse develops symptoms, so there is definitely a risk of evidential problems," Omerjee said.

Women interviewed by IPS expressed indignation at the exclusion of spouses, but half said they would not take action against their husbands 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," said Stella Ncube, a teacher.

"It is going to take a long time to erase decades of socialisation which perpetuate the belief that women do not have many rights within a marriage," Ncube added. (end/ips/sm/pm97)

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