Pregnant HIV-positive mothers who do not take precaution to prevent transmission of the virus to their unborn babies are liable for prosecution and face up to 20 years in prison under the country’s laws, a lawyer has noted.
Anyone living with the virus who has sexual intercourse with an HIV-negative partner using protection without disclosing their status may also be legally liable, even when transmission has not occurred, Mr Lizwe Jamela of the Zimbabwe Lawyers for Human Rights (ZLHR) said.
In an interview on the sidelines of the just-ended International Conference of Aids and STIs in Africa (Icasa) in Abidjan, Ivory Coast Mr Jamela, who heads ZLHR in Matabeleland and Midlands provinces said the country’s laws on deliberate transmission of HIV were too broad and should be
reviewed.
He said the broadness of the laws made almost everyone who is sexually active liable for prosecution, and thus called for the repealing of the legislation.
Under section 79 of the Criminal Law (Codification and Reform) Act chapter 9:23 deliberate transmission of HIV is a criminal offence which attracts a sentence of not more than 20 years.
“On the face of it the law talks about deliberate transmission of HIV but when you analyse it further you observe that almost everyone can face prosecution,” he said.
Section 79 (b) states that “Any person, realising that there is a real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years”.
Mr Jamela said, “Anyone can fall into that category. There is just too much conjecture in that law.
“If a pregnant woman who is HIV-positive fails to undergo the Prevention of Mother to Child Transmission (PMTCT) programme she is liable for prosecution.
“Anyone who is HIV positive who has intercourse with someone who is negative and uses protection can still be prosecuted under this law because that person would have done something which involves a real risk of possibility of infecting another person with HIV.
“The fact that one used protection can only be used as mitigation but not to absolve anyone.”
He added, “So under this law, the criminal offence is not only about deliberate transmission but even exposure to risk of transmission, which in my view is very wide and broad.”
Mr Jamela said the law should either be amended to deal specifically with cases of deliberate transmission or be totally repealed.
“We don’t need a law that criminalises HIV. Instead we should be reinforcing the human rights response to HIV intervention by increasing issues of education and advocacy.
“We could limit the law to genuine cases of deliberate transmission,” he said.
Mr Jamela further argued that it was also humanly impossible to prove in a court of law who would have infected who between complainant and defendant in cases of deliberate transmission of HIV.
“Judiciary can’t deal with who infected who. There is no technology to generate evidence to prove that. So in most cases the person who would report first becomes the complainant. But what if the complainant is the one who infected defendant, how do you prove that?
“For a criminal conviction to happen someone should be guilty beyond reasonable doubt, but we have people being convicted of deliberate infection when that threshold has not been passed,” he said.
Head of the HIV and TB unit in the Ministry of Health and Child Care Dr Owen Mugurungi described the enactment of the law as “a moment of madness”.
He said the law was counterproductive in the fight against stigma around HIV.
“It was a moment of madness. This is what happens when decisions are made based on emotions.
“The law attacks the basic rights of people living with HIV. It’s counter-productive to our interventions and defeats everything we are trying to do to fight the virus.
“That law causes people to go underground, it scares away people from getting tested because it stigmatises HIV,” he said. – state media
5 Replies to “Pregnant HIV+ Women Can Be Arrested”
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Sure, you’d think that two grownups would protect themselves, right? But no, they don’t. Maybe they start off using the protection then when they get comfortable with their partner they stop using it, even though they’re also sleeping with others on the side. I don’t get it, because you’re literally putting your life in another person’s hands. Yet look at all this stuff about ‘yekedero’ and how it’s supposed to be cool and ‘fun’, until someone gets burned. In all the years I’ve worked in health I’ve seen these heartbreaking scenarios over and over and over.Perhaps we should just accept that we’re not going to win against this virus as long as people keep doing what they do. They think ARVs are there, so it’s no big deal, without realising the side effects and other problems these cause. The education materials are there, it’s not like people don’t know about HIV but they just keep doing what they do. Perhaps these lawmakers should just forget about this law of theirs and rather lobby for better health facilities and hospices because seriously, more and more people are going to need them.
Actually it is possible to find out who infected who, but most likely the laboratory equipment and the technology required to do so is not available in Zim, since even basic equipment and medicines run short. It’s also a bit strange that pregnant women seem to be the focus of this because there are very few women, if any, who would deliberately infect their babies. The sad reality is that a lot of pregnant women find out that they’re positive when they go for a check up or even worse, when they’ve given birth and the baby fails to thrive. how does prosecution help in this scenario?
SAKA MATI ANHU OREGA KUITA SCREW EACH OTHA HERE IMWI?
I don’t think it’s targeting pregnant HIV+ women, what is said is that failure to go for the program which prevents the transmission of the virus from mother to child is the offense. Knowingly failing to protect an unborn child should be punishable there is no discrimination in protecting an unborn child. As for other scenarios, I agree that it’s everyone’s responsibility to protect themselves. If two adults engage in intimacy they should assume that there is a probability that one or both are carriers and protect themselves.
“We could limit the law to genuine cases of deliberate transmission,”
What happens to a partner who engages in unprotected sex a summing s/he is negative, yet s/he is in the “window phase” of HIV pathology?
What is the purpose of targeting pregnant women? What social circumstances lead women to contract HIV in the first place?
Zvimwe zviro tangai mwafunga pane kundo wokota kutaure zvisina kana nePO Box!
Musadaroba. HIV is a serious social challenge all around the globe.