Inter Press Service - December 7, 2004
Wilson Johwa

The 30-year-old could spend several years in prison for statutory rape and willful transmission of HIV. He is accused of having sex with a 15-year-old on several occasions, and consciously infecting her with the AIDS virus.

Kaiboni denies the charges, claiming he was unaware of his HIV status at the time. But in evidence given against him, a physician testified that the disc jockey had been told he was HIV-positive in 1999, after he took an AIDS test.

Citizens of Mutare have been mesmerized by the trial since it got underway several months ago.

But for AIDS activists, the court proceedings amount to more than compelling human drama. They also focus attention on the effectiveness of a law that bans HIV-positive persons from knowingly engaging in sexual behaviour that might lead to their partners becoming infected.

In 1998, Zimbabwe criminalized the willful transmission of HIV, defined as the failure to disclose one's status or to take precautions for preventing the transmission of AIDS, (about a quarter of the country's 12 million people are infected with the HI-virus).

"The offence can also be committed within marriage," says Professor Julie Stewart of the University of Zimbabwe's law faculty.

Few cases of willful transmission have come to light, however. Those that did receive attention were mostly discovered in the course of investigations of non-consensual sex where magistrates are allowed to request that the victim be tested for HIV.

Most people, it seems, are unaware that they have legal recourse when their partner knowingly puts them at risk of contracting AIDS - or simply disinclined to take legal action.

Organisations that represent HIV-positive people are often opposed to criminalization of sexual conduct that carries the risk of HIV transmission. They argue that these people do not necessarily intend to endanger the lives of those they have sex with - and that their actions may stem from fear, denial or ignorance.

"Willful transmission is not a regular occurrence and its fear is often propounded by society in order to demonise people with AIDS, or to increase the fear of people with the HI-virus," says Marlise Richter, a researcher with the AIDS Law project at the Centre for Applied Legal Studies. The centre forms part of the University of the Witwatersrand, which is based in South Africa's commercial hub - Johannesburg.

In a report entitled 'Criminal Law, Public Health and HIV Transmission', the Joint United Nations Programme on HIV/AIDS (UNAIDS) also weighed in against using criminal law to deal with HIV transmission.

UNAIDS says criminalization may create a false sense of security among people who are not infected. It also argues that since HIV transmission frequently occurs when people do not know they are infected, a criminal prohibition would be largely irrelevant.

Sophie Dilmitis, head of the Harare-based Choose Life Trust, says criminalisation further serves to deepen the prejudices surrounding AIDS. "It adds to people's fears of being tested and adds to the stigma linked to being HIV-positive," she notes.

Also, what of instances where Zimbabweans suspect they have AIDS - even if they haven't been tested yet? Do the country's laws open the way for prosecution of these individuals, in the event that they do pass on HIV?

"This raises the question of whether a suspicion - however strong - that you are HIV-positive or have AIDS would suffice (in court)," says Stewart. "The answer is probably no."

But even though many "gray" areas loom when countries legislate against willful transmission of HIV, several states in Southern Africa have pressed ahead with such laws. The region is considered the epicentre of the global AIDS pandemic: another country in Southern Africa, Swaziland, currently has the world's highest HIV prevalence rate (38.8 percent).

South Africa, which has more HIV-positive persons than any other country (5.3 million) is an exception to this legal trend - although things could change.

"At the moment, South African law makers are regrettably considering whether an HIV-specific crime should be added to the Sexual Offences bill," says Richter.

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