The ManicaPost
Tracy Mutowekuziva Your Rights &the Law
I have had the privilege of reading articles by various legal and social minds pertaining to section 79 of the Criminal Code.
Some of these scholars argued that, criminalising deliberate spreading of HIV has more evil than good. They argued at length how this will not stop the spread of HIV but will actually victimise the people living with HIV.
I would like, however, to respectfully divert from that school of thought. I think section 79 of The Code has no evil at all. The section reads: 79 Deliberate transmission of HIV
(1) Any person who (a) knowing that he or she is infected with HIV ;or (b) 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, or does anything 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.
(2) It shall be a defense to a charge under subsection (1) for the accused to prove that the other person concerned— (a) knew that the accused was infected with HIV; and (b) consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.
My understanding of this section is that a person who knows that they are infected with the virus, or who knows that they have been exposed to the virus and the chances are, they might have the virus. If such a person has sexual intercourse, without telling their partner their status or without protection thereby exposing their partner unknowingly to the virus, is guilty of a crime.
I am in support of this section because when one consents to sexual intercourse, they should know what exactly they are consenting to. Non disclosure of the virus to a sexual partner is fraud or misrepresentation. Whereas each person has a right not to disclose their status, it should be an exception when one is about to engage in intercourse with another person without protection.
I looked at other jurisdictions pertaining this matter in order to support the reasoning of my argument. The Canadian Criminal Code 231 treats deliberate spreading of HIV to be attempted murder.
The reasoning is that, HIV ultimately leads to death, and when one is spreading it to unsuspecting people, that person’s motive will be to kill. However, in my view this is a bit over the top, because HIV is no longer a death sentence, it is now a manageable disease just like any other diseases.
The reason why l will still stand though with the criminalisation of deliberate spreading of the disease is because, people try to live healthy lifestyles by eating clean food, exercising checkups etc and they still get sick, people get cancer from unknown sources.
It will be sad for a person to be given a disease in the guise of lovemaking and those who do that consciously should face the full wrath of the law. It was ruled in the Canadian Courts the case of Jonson Aziga where 2 of the 13 women he had deliberately given HIV had died of AIDS that, any death as a result of aggravated sexual assault is automatically first degree murder.
Non disclosure is a form of deception if it is the kind of thing that a reasonable person would expect to be disclosed. If the victim can show that the accused knew that would probably be sufficient to satisfy the element of intent of murder.
One of the articles l found worth attacking for the purposes of my argument was published by The Standard on March 21, 2016. The argument of this particular article had many reasoning which includes the following: that section 79 criminalises sex, it does not reduce the spread of HIV and it promotes stigma.
These in my view are valid but they do not warrant the removal of the section from the Criminal Code, yes, using criminal law might not eradicate the virus, but it will have a deterrence effect on people who brag about how many people they have infected.
It does not promote stigma because the disclosure is not to be done to anyone, but to sexual partner in question. I
t does not criminalize sex because it is just making it a requirement that a person with HIV communicates with their partner before they engage in sexual intercourse.
If we have a problem with the wording of the Section, it is better to re-craft and not do away with the crime completely.
- The writer, Tracy Mutowekuziva is a women rights lawyer.
