Important note: Information in this article was accurate in 2007. The state of the art may have changed since the publication date.
UN Integrated Regional Information Networks - April 19, 2007
According to the new "Penal Code Amendment Bill", an individual who is aware of their HIV positive status and has sex with a child under the age of 14 - with or without their consent - is guilty of "aggravated defilement" and, following conviction by the High Court, "liable to suffer death."
In Uganda, the crime of defilement is defined as sex with a person under the age of 14.
Parliament passed the bill unanimously, but according to Helen Kawesa, parliamentary spokeswoman, it needs presidential assent to become law, a process that usually takes about 30 days.
First tabled in August 2006, the law seeks to amend the existing penal code, which has been criticised as too lenient on HIV-positive people who rape children. While death has been the penalty for anyone found guilty of rape or defilement since 1996, it has never been implemented.
Some children's rights groups are hopeful that the new law will deter HIV- positive sexual predators from preying on children. According to Topher Mugumya, programme coordinator for research, information and advocacy at the Uganda chapter of the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN) http://www.anppcanug.org/, the widespread myth that having sex with a young child can "cleanse" one of the HI virus has led to a spike in child rape by HIV-positive men.
"About 10,000 cases of defilement are reported to the police every year; this [law] is a welcome development," Mugumya told IRIN PlusNews.
But some human rights groups were opposed to the new legislation.
"We are of the view that the death penalty for defilers is unacceptable, and amounts to cruel, inhuman and degrading treatment," Livinstone Sewanyana, the executive director of the human rights advocacy group, Foundation for Human Rights Initiative (FHRI), told IRIN PlusNews. "It is also discriminatory against people infected with HIV."
Sewanyana said his organisation had submitted a position paper to parliament proposing life sentences as an alternative punishment for people found guilty of the crime.
The new law also proposes that offenders pay victims reparations, determined by the court, for physical, sexual and psychological harm. Currently, defilement cases are often settled out of court, with the offender paying the victim's family a small fee or giving gifts of livestock and other commodities.
"This is also good progress; before, the parents of a defiled child would experience a double loss," Mugumya said. "Their child would be defiled and they would spend time and money on a court case that might not even return a judgement in their favour."
He added, however, that more fundamental changes to Uganda's legal system were needed before victims of defilement could take full advantage of the new law.
"The reported cases represent only those families who have access to the legal system," he said. "For instance, most courts are in towns, out of reach of the majority of defiled children, and the cases take so long that families sometimes lose interest before a verdict is delivered."
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